Rev. Tom Walker, II v. SunTrust Bank of Thomasvill , 363 F. App'x 11 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 19, 2010
No. 08-15419 JOHN LEY
Non-Argument Calendar ACTING CLERK
________________________
D. C. Docket No. 07-00173-CV-HL-7
REV. TOM WALKER, II,
Plaintiff-Appellant,
versus
SUN TRUST BANK OF THOMASVILLE, GA,
FORREST MONROE, and/or Estate,
JOSEPH E. POGUE,
JEAN T. POGUE,
BARBARA MONROE,
CASSANDRA MONTGOMERY
THOMAS CTY FEDERAL SAVINGS & LOAN ASSOC., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 19, 2010)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Reverend Tom Walker II, proceeding pro se, appeals from the district
court’s order dismissing his complaint. On appeal, Walker argues that the district
court erred in finding that he was proceeding in forma pauperis. He also argues
that the court erred in determining that his complaint included a claim under 42
U.S.C. § 1983, and that the court should have converted the defendants’ motions to
dismiss under Fed.R.Civ.P. 12(b)(6) into motions for summary judgment under
Fed.R.Civ.P. 56. He asserts that the court should have provided him with a jury
trial and the opportunity to submit evidence in support of his claims. Walker
further contends that the court violated his constitutional rights to due process and
equal protection by dismissing his complaint. Finally, Walker argues that the
district court judge should have recused himself from consideration of his case due
to his bias against Walker. For the reasons set forth below, we affirm.
I.
Walker, a resident of Thomasville, Georgia, filed a pro se complaint, naming
the following defendants: (1) SunTrust Bank of Thomasville, Georgia
(“SunTrust”); (2) Forrest Monroe, of Thomasville, Georgia; (3) Joseph Pogue, of
Thomasville, Georgia; (4) Jean Pogue, of Thomasville, Georgia; (5) Cassandra
Montgomery, of Thomasville, Georgia; (6) Everett Montgomery, of Thomasville,
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Georgia; (7) Mary Rolling, of Thomasville, Georgia; (8) the estate of Howard
Brooks, located in Coolidge, Georgia; (9) the City of Thomasville, Georgia
(“Thomasville”); (10) the Thomas County Superior Court (“Superior Court”);
(11) the Magistrate Court of Thomas County (“Magistrate Court”); (12) the Tax
Assessor’s Office of Thomasville, Georgia (“Tax Assessor’s Office”); (13) the
Humane Society of Thomas County (“Humane Society”); (14) the Department of
Transportation, Atlanta, Georgia (“Georgia DOT”); (15) Barbara Monroe, of
Thomasville, Georgia; (16) Roosevelt Williams, of Thomasville, Georgia; (17) the
Thomas County Federal Bank; (18) the Thomas County Sheriff’s Department
(“Sheriff’s Department”); (19) Latesha Bradley, of Valdosta, Georgia; (20) Judge
Harry Jay Altman II, of the Superior Court; and (21) David Hutchings, Clerk of the
Superior Court.
In his complaint, Walker asserted that he was bringing claims for felony
fraud, property fraud, embezzlement, falsified documents, fraudulent deeds, and
bank fraud. Walker did not set forth the elements of these offenses, nor did he
explain why the defendants were liable for these offenses. In addition, Walker
alleged that “Thomasville City officials” violated his due process rights.
Specifically, Walker asserted that Thomasville officials permitted a third party to
knock down houses and cut down trees on his property due to his
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African-American race. In his request for relief, Walker stated that he hoped to
successfully prove his “criminal case” and garner civil judgments compensating
him and his family members for physical and emotional damages.
Walker attached a letter to his complaint. In this letter, Walker stated that he
wished to bring criminal charges against Forrest and Barbara Monroe, Jean and
Joseph Pogue, Cassandra and Everett Montgomery, and SunTrust for conspiring to
defraud him and deprive him of his real property. He also asserted that he sought
criminal charges related to the killing of animals on his property. Walker alleged
that he had purchased Lots 102 and 129 of Thomas County’s 13th district from
William McMath in 1976. First National Bank of Thomasville, which was now
known as SunTrust, had financed the transaction. Despite the fact that Walker paid
back the bank loan in full, the bank, together with Monroe, conspired to hide the
property deed from Walker and deprive him of his rights as a property owner.
Apart from asserting that Thomasville officials violated his constitutional
rights by permitting third parties to knock down houses and cut down trees on his
property, Walker did not assert that any particular defendant took a specific act that
deprived him of his constitutional rights. Walker did not mention the following
defendants in the body of the complaint: (1) Rolling; (2) Howard Brooks; (3) the
Superior Court; (4) the Sheriff’s Department; (5) the Magistrate Court; (6) the Tax
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Assessor’s Office; (7) the Humane Society; (8) the Georgia DOT; (9) the Thomas
County Federal Bank; (10) Bradley; (11) Altman; and (12) Hutchings.
The docket entry for the filing of Walker’s complaint indicates that he
received a receipt for paying a filing fee of $350. The record does not indicate that
Walker sought or received permission to proceed in forma pauperis.
The following defendants responded to Walker’s complaint by filing
motions to dismiss under Fed.R.Civ.P. 12(b)(6): (1) the Magistrate Court; (2) the
Sheriff’s Department; (3) the Tax Assessor’s Office; (4) Hutchings; (5) the
Thomas County Federal Savings and Loan Association (“TCFSLA”), which
Walker had misidentified as the “Thomas County Federal Bank”; (6) Thomasville;
(7) Judge Altman; (8) the Superior Court; (9) the Georgia DOT; (10) the Humane
Society; and (11) SunTrust. These defendants generally argued that Walker’s
complaint should be dismissed under Rule 12(b)(6) because he failed to make a
short and plain statement showing that he was entitled to relief, as required by
Fed.R.Civ.P. 8(a)(2).
Jean Pogue, Joseph Pogue, Cassandra Montgomery, and Everett
Montgomery filed a pro se responsive pleading, in which they asserted that
Walker’s claims against them were too vague to permit them to properly answer
the complaint. The Pogues and the Montgomerys did not, however, indicate that
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they were seeking dismissal of the complaint.
Walker responded to the above defendants’ motions by generally reasserting
his contention that they were liable to him for fraud or, in the case of Thomasville,
for the violation of his constitutional rights. In each of his responses to the
motions for dismissal, Walker requested that the court convert these motions into
motions for summary judgment under Fed.R.Civ.P. 56. In addition, he asserted
that the court should provide him with the opportunity to submit evidence in
support of his claims.
The Monroes, Bradley, Rolling, Williams, and the estate of Howard Brooks
did not file responses to Walker’s complaint.
The district court entered an order granting the defendants’ motions to
dismiss. The court found that Walker had failed to make specific allegations
against: (1) the Magistrate Court; (2) the Sheriff’s Department; (3) the Tax
Assessor’s Office; (4) TCFSLA; (5) Hutchings; (6) the Humane Society; (7) Judge
Altman; (8) the Superior Court; and (9) the Georgia DOT. Accordingly, the court
determined that Walker’s claims against these defendants did not satisfy the
pleading requirements set forth in Rule 8(a)(2), and dismissed his complaint as to
these defendants under Fed.R.Civ.P. 12(b)(6).
Addressing the claims against Thomasville, the court determined that,
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construing the complaint liberally, Walker’s claims against the city were brought
pursuant to 42 U.S.C. § 1983. The court noted that “municipal liability under
§ 1983 exists only when a municipal policy, practice, or the decision of a final
municipal policy maker caused the deprivation of [the] plaintiff’s federally
protected right.” The court determined that Walker’s “vague and conclusory
allegations” failed to implicate such a policy. Accordingly, the court concluded
that Walker’s claims against Thomasville did not rise above the speculative level,
and granted the city’s motion to dismiss. Addressing SunTrust’s motion to
dismiss, the court determined that, while Walker made allegations against
SunTrust, these allegations were “ambiguous, conclusory, and unintelligible.” The
court thus found that Walker’s claims against SunTrust failed to satisfy the
pleading requirements set forth in Fed.R.Civ.P. 8(a)(2).
The court further reasoned that, even though several defendants had not filed
motions to dismiss, 28 U.S.C. § 1915(e)(2)(B) required it to sua sponte review
Walker’s claims because he was proceeding in forma pauperis. Thus, the court
considered whether dismissal was appropriate as to those defendants who had not
filed motions to dismiss. The court dismissed the claims against Williams, the
Brooks estate, Rolling, and Bradley because Walker failed to make any specific
allegations against them in his complaint.
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Regarding the Monroes, the Pogues, and the Montgomerys, the court noted
that Walker had made allegations against these defendants in the letter attached to
his complaint. The court determined, however, that these “ambiguous and
conclusory” allegations failed to raise a right to relief above the speculative level.
In addition, the court determined that it did not possess subject matter jurisdiction
over Walker’s claims against the Monroes, the Pogues, and the Montgomerys
because these were state law claims, and Walker did not allege facts indicating that
the court had diversity jurisdiction. Moreover, because the court had dismissed
Walker’s § 1983 claims, the court declined to exercise supplemental jurisdiction
over Walker’s state law claims against the Monroes, the Pogues, and the
Montgomerys. Accordingly, the court dismissed Walker’s complaint as to all of
the defendants.
Walker filed a notice of appeal from the district court’s order dismissing his
complaint. Thereafter, Walker filed numerous pleadings requesting that the district
court permit him to engage in discovery. In these pleadings, Walker asserted that
the district court judge who had considered his case was biased against him, and
had violated his constitutional rights by dismissing his complaint.
II.
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We liberally construe a pro se litigant’s pleadings. Powell v. Lennon, 914
F.2d 1459, 1463 (11th Cir. 1990). We review a district court’s factual findings for
clear error. Daewoo Motor Am., Inc. v. General Motors Corp., 459 F.3d 1249,
1256 (11th Cir. 2006). We review de novo a district court’s determination that it
lacks subject matter jurisdiction over a claim. Williams v. Chatman, 510 F.3d
1290, 1293 (11th Cir. 2007). We review for abuse of discretion, however, a
district court’s decision not to exercise supplemental jurisdiction over a claim.
Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 738 (11th Cir. 2006). We
may affirm a district court’s judgment based on any ground supported by the
record. Koziara v. City of Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004).
Where a plaintiff is proceeding in forma pauperis, a district court is required
to sua sponte determine whether the complaint: (1) is frivolous or malicious;
(2) fails to state a claim upon which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B); See Alba v. Montford, 517 F.3d 1249, 1251-52, n.3 (11th Cir.),
cert. denied, 129 S.Ct. 632 (2008). In addition, a district court may sua sponte
consider whether it has subject matter jurisdiction over a plaintiff’s claims.
Fed.R.Civ.P. 12(h)(3); Williams, 510 F.3d at 1293. A defendant may assert the
defense that the plaintiff’s complaint fails to state a claim upon which relief may be
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granted by filing a motion under Fed.R.Civ.P. 12(b)(6). See Fed.R.Civ.P. 12(b).
Subject matter jurisdiction in a federal court may be based upon federal
question jurisdiction or diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Diversity
jurisdiction exists where the plaintiffs and defendants are citizens of different
states, and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332;
MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005) (noting
that “[c]omplete diversity requires that no defendant in a diversity action be a
citizen of the same state as any plaintiff”). “Absent diversity of citizenship, a
plaintiff must present a substantial federal question in order to invoke the district
court’s jurisdiction.” Wyke v. Polk County School Bd., 129 F.3d 560, 566 (11th
Cir. 1997).
Where a district court possesses original jurisdiction over a plaintiff’s claim
under § 1331, it may exercise supplemental jurisdiction over those state law claims
“that are so related to claims in the action within [the court’s] original jurisdiction
that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). “The
constitutional ‘case or controversy’ standard confers supplemental jurisdiction over
all state claims which arise out of a common nucleus of operative fact with a
substantial federal claim.” Parker, 468 F.3d at 743. Even if a court possesses
subject matter jurisdiction over state law claims by virtue of their close connection
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to a federal claim, the court may decline to exercise its jurisdiction over the state
law claims where, among other things, the court has dismissed all claims over
which it had original jurisdiction. 28 U.S.C. § 1367(c)(3); Parker, 468 F.3d at 743.
Under 42 U.S.C. § 1983, a plaintiff may sue an individual who, while acting
under color of state law, deprived him of a constitutional right. 42 U.S.C. § 1983;
Collier v. Dickinson, 477 F.3d 1306, 1307 (11th Cir. 2007). Municipalities and
other local government entities are “persons” within the meaning of § 1983.
Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690,
98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). In order to impose § 1983 liability on
a municipality, a plaintiff must show that: (1) his constitutional rights were
violated; (2) the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused
the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Here, the record provides no support for the district court’s determination
that Walker was proceeding in forma pauperis, because the docket entry for the
filing of his complaint indicates that he paid the filing fee, and the record does not
reflect that he sought or received permission to proceed in forma pauperis.
Accordingly, it appears that the district court clearly erred in finding that Walker
was proceeding in forma pauperis. Based on its erroneous determination of
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Walker’s filing status, the court applied 28 U.S.C. § 1915(e)(2)(B) to sua sponte
dismiss his claims against those defendants who did not file motions to dismiss –
Williams, Brooks, Rolling, Bradley, the Monroes, the Pogues, and the
Montgomerys. Because Walker was not proceeding in forma pauperis, however,
dismissal under § 1915(e)(2)(B) was improper. Moreover, there is no indication
that a court may sua sponte determine whether a complaint is subject to dismissal
under Rule 12(b)(6) where the plaintiff is not proceeding in forma pauperis. We
note that, while the Pogues and the Montgomerys filed a pro se responsive
pleading, they did not indicate that they sought dismissal of the complaint. As a
result, it does not appear that their motion could be construed as a motion to
dismiss under Fed.R.Civ.P. 12(b)(6).
Nevertheless, we may affirm the district court’s dismissal of Walker’s
claims against these defendants who did not file a motion to dismiss on the
alternative ground that the court could properly sua sponte dismiss these claims for
lack of subject matter jurisdiction. Because Walker and the defendants were from
Georgia, there was no diversity jurisdiction in this case. Moreover, because
Walker’s complaint primarily asserted only state law fraud claims, the only basis
for federal question jurisdiction in this case was Walker’s claim that Thomasville
city officials violated his constitutional rights. Construing Walker’s complaint
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liberally, the court properly determined that this allegation constituted a § 1983
claim against a municipality, which provided the court with federal question
jurisdiction under § 1331. The court, however, dismissed this claim because
Walker failed to allege that Thomasville employed a custom or policy that resulted
in the deprivation of his constitutional rights. Because the court dismissed the only
claim over which it had original jurisdiction, it then had discretion to decline to
exercise supplemental jurisdiction over Walker’s state law claims against the other
defendants who did not file a motion to dismiss. As a result, even if the court erred
in sua sponte dismissing these claims under § 1915(e)(2)(B), these claims were
still subject to sua sponte dismissal for lack of subject matter jurisdiction, and we
affirm on this basis.
III.
Pursuant to Fed.R.Civ.P. 12(d), if a district court considers matters outside
of the pleadings when ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
then the motion to dismiss must be treated as a motion for summary judgment
under Fed.R.Civ.P. 56. Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116
F.3d 1364, 1371 (11th Cir. 1997). Where a district court considers matters outside
the pleadings, thereby converting the motion to dismiss into a motion for summary
judgment, the court must provide all parties with a reasonable opportunity to
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present all material that is pertinent to the decision of whether summary judgment
is appropriate. Id. “Under most circumstances, such material would not be part of
the record underpinning a Rule 12(b)(6) ruling.” Daewoo Motor Am., Inc., 459
F.3d at 1266 n.11.
Here, the district court based its dismissal on its determination that Walker’s
complaint, on its face, did not satisfy the pleading requirements of Fed.R.Civ.P.
8(a)(2), and could not withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
The court did not consider any matters beyond the pleadings in making this
determination. Accordingly, the court did not err by failing to convert the
defendants’ motions to dismiss to motions for summary judgment. For this same
reason, the court did not err by failing to grant Walker a jury trial or otherwise
provide him with the opportunity to submit evidence in support of his claims.
IV.
In order to prevail on a claim that his right to equal protection has been
violated, a plaintiff must show that he has been treated differently on account of
some form of invidious discrimination. City of Cleburne, Texas v. Cleburne Living
Ctr., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). The
Fourteenth Amendment’s Due Process Clause protects an individual’s substantive
and procedural rights. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en
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banc). A violation of substantive due process rights occurs where an individual’s
fundamental rights, those “implicit in the concept of ordered liberty,” are infringed.
Id. at 1556 (quotation omitted). Procedural due process rules, on the other hand,
protect an individual from the unjustified deprivation of life, liberty, or property.
Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978).
Walker’s arguments that the court violated his rights to due process and
equal protection lack merit. The court’s judgment in this case provide no
indication that the court discriminated against Walker on the basis of his race. In
addition, Walker does not otherwise explain how the court violated his
constitutional rights, and the record provides no indication that the court violated
Walker’s fundamental rights, or that its actions resulted in the unjustified
deprivation of life, liberty, or property.
Finally, we do not consider Walker’s argument that the district court judge
should have recused himself from consideration of Walker’s case, because Walker
did not raise this argument to the district court until after he filed a notice of
appeal. See Ledford v. Peeples, 568 F.3d 1258, 1298 (11th Cir. 2009) (holding that
we generally do not consider arguments raised for the first time on appeal);
Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003) (holding that, “[a]s a general
matter, the filing of a notice of appeal deprives the district court of jurisdiction
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over all issues involved in the appeal”).
AFFIRMED.
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