USCA11 Case: 21-10878 Date Filed: 03/18/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10878
Non-Argument Calendar
____________________
ANTHONY I. PROVITOLA,
Plaintiff-Appellant,
versus
DENNIS L. COMER,
FRANK A. FORD, JR.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cv-00862-PGB-DCI
____________________
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2 Opinion of the Court 21-10878
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
After unsuccessfully litigating a property dispute in state
court, Anthony Provitola sued his state court adversary, Dennis
Comer, and Comer’s attorney, Frank Ford, in federal court for vi-
olating his Fourteenth Amendment due process rights. The district
court dismissed Provitola’s amended complaint with prejudice be-
cause his claims were barred under Florida’s litigation privilege and
the Rooker-Feldman doctrine,1 and because they failed to state a
claim under Federal Rule of Civil Procedure 12(b)(6). After thor-
ough review, we affirm but remand the case to the district court
for the limited purpose of correcting the judgment to reflect that
the amended complaint is dismissed without prejudice.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Provitola, a Florida attorney, sued Comer in Florida state
court after Comer obstructed Provitola’s passage on a public road
with a gate. Ford represented Comer in the state court lawsuit.
Florida Circuit Judge Sandra Upchurch dismissed Provitola’s
claims without prejudice, found Provitola’s motion for summary
judgment to be “without support,” and granted Comer’s motion
1
Rooker v. Fid. Tr. Co.,
263 U.S. 413 (1923); D.C. Ct. App. v. Feldman,
460
U.S. 462 (1983).
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21-10878 Opinion of the Court 3
for attorney’s fees. Judge Upchurch then recused herself. After the
case was assigned to Florida Circuit Judge Randell Rowe, Provitola
filed an amended complaint. Judge Rowe dismissed Provitola’s
amended complaint with prejudice.
Provitola appealed Judge Upchurch’s attorney’s fees award
and Judge Rowe’s dismissal order to Florida’s Fifth District Court
of Appeal. A three-judge panel affirmed the dismissal order and
dismissed the appeal of the attorney’s fees award. On remand,
Judge Rowe denied Provitola’s motion to vacate the attorney’s fees
award, ruled that his motion for summary judgment was “without
support,” and entered final judgment awarding attorney’s fees to
Comer. Provitola appealed Judge Rowe’s fee judgment to the Fifth
District Court of Appeal. A different three-judge panel affirmed.
After losing in state court, Provitola sued Comer and Ford
in the district court. Provitola’s amended complaint alleged claims
“under 42 U.S.C. section 1983 and 28 U.S.C. section 1367.” The
amended complaint alleged that Comer and Ford violated Provi-
tola’s due process rights when they acted “as private persons jointly
engaged with” and “with the cooperation of and in concert with
the corruption of” Judge Upchurch, Judge Rowe, and both Fifth
District Court of Appeal panels to “illegally” rule against him.
More specifically, the amended complaint alleged that Provitola
was injured by: (1) Judge Upchurch’s “illegal granting” of Comer’s
motion for attorney’s fees and “illegally facilitating the Defendants’
avoidance of the hearing of [Provitola’s] motion for summary judg-
ment”; (2) Judge Rowe’s “illegal granting” of Comer’s motion to
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4 Opinion of the Court 21-10878
dismiss and motion for attorney’s fees, “illegal denial” of Provi-
tola’s motion to vacate, and “illegally facilitating the Defendants’
avoidance of [Provitola’s] motion for summary judgment”; (3) the
Fifth District Court of Appeal’s “illegal affirmance” of Judge
Rowe’s dismissal order; and (4) the Fifth District Court of Appeal’s
“illegal affirmance” of Judge Rowe’s attorney’s fees award. The
amended complaint also requested judgment “declaring all of the
unconstitutional actions of the courts in the [state lawsuit] to be
null and void” and “providing the relief requested in the [state law-
suit] that was denied as a result of the unconstitutional action of
the [s]tate courts in the [state lawsuit].”
Comer and Ford moved to dismiss the amended complaint.
The district court granted the motion and dismissed the amended
complaint with prejudice on three grounds. First, the district court
concluded that Florida’s litigation privilege provided Comer and
Ford absolute immunity because their actions occurred during the
regular course of litigation. Second, the district court concluded
that Provitola’s claims failed because he had not alleged that
Comer and Ford were state actors under section 1983. And third,
the district court concluded that it lacked jurisdiction over Provi-
tola’s claims under the Rooker-Feldman doctrine because they
were “a thinly veiled attempt to re-litigate his state court action.”
Provitola timely appealed.
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21-10878 Opinion of the Court 5
II. STANDARDS OF REVIEW
We review de novo a district court’s order granting a mo-
tion to dismiss with prejudice, applying the same standards the dis-
trict court used. Young Apartments, Inc. v. Town of Jupiter,
529
F.3d 1027, 1037 (11th Cir. 2008). We also review de novo a district
court’s dismissal for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine. Nicholson v. Shafe,
558 F.3d 1266, 1270
(11th Cir. 2009).
III. DISCUSSION
The district court correctly concluded that it lacked jurisdic-
tion over Provitola’s claims under the Rooker-Feldman doctrine.
The doctrine prohibits appellate review of state court decisions in
federal district courts “[o]nly when a losing state court litigant calls
on a district court to modify or ‘overturn an injurious state-court
judgment.’” Behr v. Campbell,
8 F.4th 1206, 1210 (11th Cir. 2021)
(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S.
280, 293 (2005)). To determine whether a claim falls into the small
class of claims barred by Rooker-Feldman, we look to the relief
sought. See
id. at 1213–14 (“The question . . . [is] whether resolu-
tion of each individual claim requires review and rejection of a state
court judgment. . . . [T]he claim for relief does matter.”).
“[C]laims that seek only damages for constitutional violations of
third parties—not relief from the judgment of the state court—are
permitted.” Id. at 1214. “[C]laims that invite a district court’s ‘re-
view and rejection’ of a state court judgment” are not. Id.
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6 Opinion of the Court 21-10878
Provitola’s claims fall within Rooker-Feldman’s limited
scope. Although labeled as constitutional violations by Comer and
Ford, Provitola’s allegations make plain that his injuries were
caused by the state court judgment. See id. at 1212 (“The injury
must be caused by the judgment itself.”). And the amended com-
plaint’s prayer for relief—requesting judgment “declaring all of the
unconstitutional actions of the courts in the [state lawsuit] to be
null and void” and “providing the relief requested in the [state law-
suit] that was denied as a result of the unconstitutional action of
the [s]tate courts in the [state lawsuit]”—demonstrates that Provi-
tola’s claims are in reality direct challenges to his state court losses
“cloak[ed] . . . in the cloth of a different claim.” See id. at 1211
(quoting May v. Morgan County Ga.,
878 F.3d 1001, 1005 (11th Cir.
2017)). In other words, the purpose of Provitola’s constitutional
claims against Comer and Ford was not to determine whether he
was entitled to damages for constitutional violations; rather, their
purpose was to undo the state court judgment. “That,” we have
explained, is “a violation of Rooker-Feldman.” Id. at 1213.
Because the district court correctly dismissed Provitola’s
amended complaint for lack of subject matter jurisdiction, we do
not reach Provitola’s argument that the district court erred in con-
cluding that Comer and Ford were entitled to absolute immunity
and that he had not alleged that Comer and Ford were state actors
under section 1983. A dismissal for lack of subject matter jurisdic-
tion must, however, be entered without prejudice because it is not
a judgment on the merits. Stalley ex rel. U.S. v. Orlando Reg’l
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21-10878 Opinion of the Court 7
Healthcare Sys., Inc.,
524 F.3d 1229, 1232 (11th Cir. 2008). There-
fore, we remand with instructions to correct the judgment.
IV. CONCLUSION
We AFFIRM the dismissal of Provitola’s amended com-
plaint under the Rooker-Feldman doctrine. But we REMAND for
the limited purpose of having the district court correct the judg-
ment to reflect dismissal without prejudice. 2
2
We DENY Comer and Ford’s motion for sanctions.
