Case: 18-14667 Date Filed: 04/14/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14667
Non-Argument Calendar
________________________
D.C. Docket No. 5:18-cv-00187-WTH-PRL
WENDELL D. ISAAC,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS,
J. DOE,
Medical Corporation,
CHARLES E. SAMUELS, JR.,
Former Director of BOP,
J. DOE I,
BOP Chief Medical Director, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 14, 2020)
Case: 18-14667 Date Filed: 04/14/2020 Page: 2 of 9
Before MARTIN, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
Wendell Isaac, a federal prisoner proceeding pro se, appeals the sua sponte
dismissal without prejudice of his amended complaint deemed by the district court
to be an impermissible “shotgun” pleading. On appeal, he argues that: (1) the
District Court for the District of Columbia erred in transferring his case to District
Court for the Middle District of Florida; (2) the district court erred in denying him
leave to appeal in forma pauperis (“IFP”); (3) his complaint set forth specific factual
allegations, and he was never given an opportunity to amend; and (4) if remanded,
his case should be assigned to a different judge who is not biased against him. After
careful review, we dismiss in part, affirm in part, and vacate and remand in part.
First, we dismiss Isaac’s challenges to the transfer order and the order denying
him leave to proceed IFP. Under our case law, we lack jurisdiction to review a
transfer order from a district court within another circuit to a district court in this
circuit. Murray v. Scott,
253 F.3d 1308, 1314 (11th Cir. 2001). The proper means
to preserve review is by petition for mandamus in the transferring circuit or by a
motion for re-transfer in the transferee district court. Roofing & Sheet Metal Servs,
Inc. v. LaQuinta Motor Inns, Inc.,
689 F.2d 982, 988-89 (11th Cir. 1982). We also
lack jurisdiction when an issue is moot. Zinni v. ER Solutions,
692 F.3d 1162, 1166
(11th Cir. 2012). “[A]n issue is moot when it no longer presents a live controversy
2
Case: 18-14667 Date Filed: 04/14/2020 Page: 3 of 9
with respect to which the court can give meaningful relief.” Christian Coal. of Fla.,
Inc. v. United States,
662 F.3d 1182, 1189 (11th Cir. 2011) (quotations omitted).
In addition, an order denying leave to appeal IFP is not a final appealable
order. The proper avenue for “review” of such an order is by motion to this Court.
See Fed. R. App. P. 24(a)(5) & advisory committee notes (1967) (noting that the IFP
rule “establishes a subsequent motion in the court of appeals, rather than an appeal .
. . as the proper procedure for calling in question the correctness of the action of the
district court”); Gomez v. United States,
245 F.2d 346, 347 (5th Cir. 1957)
(indicating that the correct procedure is to renew the motion in the appellate court).1
Here, we lack the jurisdiction to review both the transfer order from the United
States District Court for the District of Columbia and the district court’s denial of
Isaac’s motion for leave to appeal IFP. The transfer order was issued by a district
court in another circuit to a district court in this circuit, thus prohibiting our
jurisdiction. Further, the district court’s denial of leave to file IFP is not an
appealable order and, in any event, we granted Isaac IFP status on appeal, rendering
this issue moot.
As for the dismissal of Isaac’s amended complaint, we agree with the district
court that it was an impermissible shotgun pleading, although we conclude that the
1
See Bonner v. City of Prichard, Ala.,
661 F.2d 1206, 1209 (11th Cir. 1981) (holding that
decisions of the former Fifth Circuit handed down prior to the close of business on September
30, 1981, are binding in the Eleventh Circuit).
3
Case: 18-14667 Date Filed: 04/14/2020 Page: 4 of 9
court abused its discretion by failing to grant Isaac leave to amend. We review for
abuse of discretion a district court’s dismissal for failure to comply with Fed. R. Civ.
P. 8(a)(2) under its “inherent authority to control its docket and ensure the prompt
resolution of lawsuits.” Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d
1313, 1320 (11th Cir. 2015). Although we hold pro se pleadings to a less stringent
standard than pleadings drafted by attorneys, we may not “rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air Jam. Ltd.,
760
F.3d 1165, 1168–69 (11th Cir. 2014).
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint include “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). “Shotgun” pleadings do not contain a “short and plain
statement of the claim” and we repeatedly have condemned them. Magluta v.
Samples,
256 F.3d 1282, 1284 (11th Cir. 2001). Although there are different types
of shotgun pleadings, all are characterized by their failure to give the defendants
adequate notice of the claims against them and the grounds upon which each rest.
Weiland, 792 F.3d at 1323. The four types are: (1) “a complaint containing multiple
counts where each count adopts the allegations of all preceding counts,” (2) a
complaint that is “replete with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action,” (3) a complaint that does “not separat[e]
into a different count each cause of action or claim for relief,” and (4) a complaint
4
Case: 18-14667 Date Filed: 04/14/2020 Page: 5 of 9
that “assert[s] multiple claims against multiple defendants without specifying which
of the defendants are responsible for which acts or omissions, or which of the
defendants the claim is brought against.”
Id. at 1321-23.
When a defendant, faced with a shotgun pleading, fails to move the district
court to require the plaintiff to file a more definite complaint, “the district court ought
to take the initiative to dismiss or strike the shotgun pleading and give the plaintiff
an opportunity to replead.”
Id. at 1321 n.10. In the case of a non-merits dismissal
with prejudice on shotgun pleading grounds in a counseled case, district courts are
required to sua sponte allow the litigant one chance to remedy the deficient pleading.
Vibe Micro, Inc. v. Shabanets,
878 F.3d 1291, 1295-96 (11th Cir. 2018). After that
one opportunity to replead, the district court may “dismiss with prejudice if the party
has still neither filed a compliant pleading nor asked for leave to amend.”
Id. at
1296.
We clarified that Vibe Micro “decide[d] and intimate[d] nothing about a party
proceeding pro se.”
Id. at 1296 n.6.
In a later case reiterating that a dismissal with prejudice of a shotgun
complaint must follow the provision of an attempt to amend, we explained that “[a]
chance to amend a complaint does not need to come in the form of a dismissal
without prejudice or the striking of a portion of the complaint’s allegations,” as it
“can also be accomplished by ordering the party to file a more definite statement.”
Jackson v. Bank of Am., N.A.,
898 F.3d 1348, 1358-59 (11th Cir. 2018) (noting that
5
Case: 18-14667 Date Filed: 04/14/2020 Page: 6 of 9
what matters is whether the plaintiff received fair notice of the complaint’s defects
and “a meaningful chance to fix them”). We’ve also held that dismissal of a
complaint as a shotgun pleading was not warranted when: (1) each count
incorporated all factual allegations but not all earlier counts; (2) the “failure to more
precisely parcel out and identify the facts relevant to each claim [did not] materially
increase[] the burden of understanding the factual allegations underlying each
count”; (3) the complaint identified which constitutional amendment governed
which counts; and (4) the complaint was sufficiently informative to permit a
reviewing court to determine if it stated claims upon which relief could be granted.
Weiland, 792 F.3d at1324-26.
In Pinson v. JPMorgan Chase Bank, NA, we rejected a defendant’s argument
that we affirm the district court’s dismissal of a pro se complaint for failure to state
a claim on the ground that it was a shotgun pleading.
942 F.3d 1200, 1207 (11th
Cir. 2019). We held that while the complaint incorporated all prior counts into each
later count, and was perhaps longer than needed, it set forth the claims in sufficiently
comprehensible fashion for the defendant and the district court to understand and
address them.
Id. at 1208. We added that, while the shotgun pleading prohibition
applies to pro se parties, pro se parties were entitled to more leniency.
Id.
While we can reassign a case to a different judge on remand, that course of
action is a “severe remedy.” Stargel v. SunTrust Banks, Inc.,
791 F.3d 1309, 1311
6
Case: 18-14667 Date Filed: 04/14/2020 Page: 7 of 9
(11th Cir. 2015). Three factors guide whether we will do so: “(1) whether the
original judge would have difficulty putting his previous views and findings aside;
(2) whether reassignment is appropriate to preserve the appearance of justice; (3)
whether reassignment would entail waste and duplication out of proportion to the
gains realized from reassignment.”
Id. at 1311-12 (quotations omitted).
A judge shall recuse himself if he is personally biased or prejudiced against a
party or in favor of an adverse party, or whenever the judge’s “impartiality might
reasonably be questioned.” 28 U.S.C. §§ 144, 455(a). “The standard is whether an
objective, fully informed lay observer would entertain significant doubt about the
judge’s impartiality.” In re Walker,
532 F.3d 1304, 1310 (11th Cir. 2008)
(quotations omitted). “The general rule is that bias sufficient to disqualify a judge
must stem from extrajudicial sources.” Thomas v. Tenneco Packaging Co.,
293 F.3d
1306, 1329 (11th Cir. 2002) (quotations omitted). “The exception to this rule is
when a judge’s remarks in a judicial context demonstrate such pervasive bias and
prejudice that it constitutes bias against a party.”
Id. (quotations omitted). “Adverse
rulings are grounds for appeal but rarely are grounds for recusal.” In re
Walker, 532
F.3d at 1311 (citing Liteky v. United States,
510 U.S. 540, 554 (1994)).
As the record before us reveals, the district court properly concluded that
Isaac’s amended complaint was a shotgun pleading. The amended complaint not
only incorporates all the facts into each count, frequently lists conclusory facts, and
7
Case: 18-14667 Date Filed: 04/14/2020 Page: 8 of 9
does not plainly set forth which facts relate to which count, but it clearly fits the
fourth Weiland category because 13 of its 17 counts do not specify which of the 50
defendants they are being brought against. Therefore, it is a shotgun pleading
because it fails to give the defendants adequate notice of the claims against them and
the grounds upon which each claim rests. See
Weiland, 792 F.3d at 1323.
However, the district court abused its discretion by failing to give Isaac an
opportunity to replead his claims. The district court dismissed Isaac’s amended
complaint sua sponte, in the same order in which it pointed out the complaint’s
defects, and although the dismissal was without prejudice, the district court closed
the case and did not grant leave to amend. It’s true that Isaac had already amended
his complaint once, but it was only to comply with the magistrate judge’s order to
use the civil rights complaint form. In other words, the district court never notified
Isaac of the defects in his complaint before dismissal, and it did not furnish him an
opportunity to fix them. This failure to grant an opportunity to amend was an abuse
of discretion. See Vibe
Micro, 878 F.3d at 1295-96 (providing that district courts
should give litigants one opportunity to remedy a deficient pleading). While this
Court said that Vibe Micro applied to counseled parties, there is no indication that it
would not apply to pro se litigants, especially since pro se parties are entitled to more
8
Case: 18-14667 Date Filed: 04/14/2020 Page: 9 of 9
leniency. 2 See
Pinson, 942 F.3d at 1208; Vibe
Micro, 878 F.3d at 1296 n.6. Further,
despite the complaint’s defects, it raises several claims that, assuming he clarifies
which counts are brought against which defendants, a reviewing court could assess
whether they state a claim for relief. See
Weiland, 792 F.3d at 1324-26;
Pinson, 942
F.3d at 1208.
However, we do not order Isaac’s case to be assigned to a different judge on
remand. Nothing in the record suggests that the district court judge is biased against
Isaac or would be unable to put aside his previous ruling. Isaac only refers to the
judicial rulings as evidence of bias, and adverse rulings, in and of themselves, are
not grounds for recusal. Thus, we do not assign this case on remand to another judge.
DISMISSED IN PART, AFFIRMED IN PART, VACATED AND
REMANDED IN PART.
2
We add that while the district court’s dismissal here was without prejudice and Vibe Micro
considered a dismissal with prejudice, it is possible that some or all of Isaac’s claims would be
barred by the statute of limitations if he were forced to file a new complaint now. See Justice v.
United States,
6 F.3d 1474, 1481 n.15 (11th Cir. 1993) (holding that dismissal without prejudice
is tantamount to dismissal with prejudice when claims would be barred by statute of limitations).
9
