Daniel C. Gamo v. United States , 154 F. App'x 784 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 15, 2005
No. 05-12492 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20412-CV-ASG
DANIEL C. GAMO,
MICHAEL A. MAGGIO,
Plaintiffs-Appellants,
versus
UNITED STATES,
UNITED STATES CUSTOMS SERVICE,
TOM ROLAND,
JEFFREY BALDWIN,
JERRY LONG, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 15, 2005)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
In this civil rights action brought against the United States, the U.S. Customs
Service, and three Customs Service agents pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971), the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et.
seq., 42 U.S.C. §§ 1985, 1986, and 28 U.S.C. § 1367 case, the district court, ruling
on defendants’ alternative motions to dismiss and for summary judgment, granted
defendants summary judgment on Counts I, II, IV, V, VI, VII, and VIII of
plaintiffs’ amended complaint. See Order on Motion to Dismiss Complaint or, in
the alternative, Motion for Summary Judgment, dated February 28, 2005. This
disposed of all of plaintiff Maggio’s claims. As for Count III, plaintiff Gamo’s
claim for assault and battery, the court concluded that that count failed to state a
claim for relief. Id. The court gave Gamo leave to amend Count III by a date
certain so to identify the persons who allegedly committed the assault and battery
and the constitutional rights purportedly infringed. The court’s order stated that
Gamo’s failure to amend Count III would result in a dismissal without further
notice. Id. Gamo failed to amend Count III. The court therefore dismissed the
case with prejudice, entering final judgment for defendants on all claims. See
Order Dismissing Case in its Entirety, dated March 25, 2005. Maggio and Gamo
now appeal.
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Plaintiffs’ amended complaint asserted claims for false arrest and
imprisonment and illegal search of plaintiffs’ persons and seizure of their currency,
in violation of the Fourth Amendment; assault and battery upon plaintiff Gamo;
deprivation of plaintiffs’ property without due process, in violation of the Fifth
Amendment; imposition of excessive fines, in violation of the Eighth Amendment;
conspiracy under 42 U.S.C. § 1985; and “neglect to prevent” unlawful acts under
42 U.S.C. § 1986.
Plaintiffs contend that summary judgment was improper because defendants
did not file a concise statement of material facts, and, although there were disputed
issues of material fact, plaintiffs were not required to point out those disputed facts
because the defendants had not met their burden to show that they were entitled to
summary judgment. Plaintiffs also contend that the district court could not grant
the motion to dismiss because it considered matters outside the pleadings and,
moreover, improperly acted as a fact finder.
We find no error in the manner in which the court handled the matter. The
court did not improperly convert defendants’ motion to dismiss into a motion for
summary judgment because defendants’ motion explicitly relied on the summary
judgment rule, Fed. R. Civ. P. 56. Even if we were to conclude that the court failed
to comply with Rule 56's requirement that the non-movant be given ten days’
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notice of the court’s intention to take a motion for summary judgment under
advisement, we would find the error harmless because plaintiffs were well aware of
defendants’ reliance on Rule 56, as evidenced by the arguments they made and the
documents they submitted in response to defendants’ motion.
In this case, the material facts are not in dispute; hence, it was ripe for
summary judgment consideration. The question thus becomes whether the court
erred in granting summary judgment (as well as defendants’ motion to dismiss
Count III).
The district court dispositive order of February 28, 2005, contains an
accurate statement of plaintiffs’ claims and the applicable law. We discern no
error in the court’s application of that law to plaintiffs’ claims. The court’s
judgment is due to be affirmed.
AFFIRMED.
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