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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12464
Non-Argument Calendar
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D.C. Docket No. 4:19-cv-00266-AW-MAF
TERRILL L. AILEP,
Plaintiff - Appellant,
versus
DALAN MCDONALD,
Corrections Officer,
LORI NORWOOD,
Former AWP,
JAVIER JONES,
Asst Warden,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 29, 2021)
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Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Terrill Lamar Ailep, a Florida prisoner proceeding pro se, appeals the sua
sponte dismissal of his civil rights complaint under
42 U.S.C. § 1983 as barred by
res judicata and for failure to state claim. The record shows that, in 2017, Ailep
filed a complaint in the United States District Court for the Southern District of
Florida in case number 1:17-cv-22815 (“Ailep I”), naming the following parties as
defendants: Dade Correctional Institution (“DCI”) Sergeant Dalan McDonald; Lori
Norwood, a DCI official, Lori Norwood; and DCI Assistant Warden Javier Jones.
In the Ailep I complaint, Ailep alleged that the defendants were liable for improperly
depriving him of personal property when they moved him to administrative
confinement in 2016. The district court dismissed this complaint.
In 2019, Ailep filed the present complaint in the Northern District of Florida
and once again named, as defendants, McDonald, Norwood, and Jones. In this
complaint, he challenged the same deprivation of property alleged in Ailep I. A
magistrate judge reviewed Ailep’s complaint and issued a report on March 25, 2020,
taking judicial notice of the proceedings in Ailep I and recommending that the district
court dismiss the action because it was barred by res judicata and, alternatively,
Ailep failed to state a claim. On May 12, 2020, the district court issued an order
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adopting the magistrate judge’s report and recommendation, and Ailep filed this
appeal.
On appeal, Ailep argues that dismissal was unwarranted because his claims in
the instant case were based, at least in part, on the harm caused by the deprivation
of property in the years since Ailep I was dismissed. Additionally, he argues that the
defendants intentionally deprived him of his property, that state law does not provide
him an adequate remedy, and that, as such, the deprivation of his property violated
the Eighth and Fourteenth Amendments. For ease of reference, we will address each
point in turn.
I.
We review the district court’s application of res judicata de novo. Hughes v.
Lott,
350 F.3d 1157, 1160 (11th Cir. 2003). “Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998).
“Nevertheless, we cannot act as de facto counsel or rewrite an otherwise deficient
pleading to sustain an action.” Bilal v. Geo Care, LLC,
981 F.3d 903, 911 (11th Cir.
2020).
In civil cases, we will generally not consider an issue that was not raised in
the district court. Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th
Cir. 2004). Similarly, when an appellant fails to identify a particular issue in his
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brief for this Court or fails to sufficiently argue the merits of his position on an
identified issue, he is deemed to have abandoned it. Hamilton v. Southland Christian
Sch., Inc.,
680 F.3d 1316, 1318–19 (11th Cir. 2012).
Res judicata bars the parties to a prior action from relitigating the same causes
of action that were, or could have been, raised in that prior action, if that action
resulted in a final judgment on the merits. In re Piper Aircraft Corp.,
244 F.3d 1289,
1296 (11th Cir. 2001). Res judicata applies when the following elements are
satisfied: (1) the prior decision was rendered by a court of competent jurisdiction;
(2) there was a final judgment on the merits; (3) both cases involve the same parties
or their privies; and (4) both cases involve the same causes of action.
Id.
With respect to the final res judicata element, a case involves the same causes
of action where the claim is based on “the same nucleus of operative facts.”
Id. at
1297 (quoting Ragsdale v. Rubbermaid, Inc.,
193 F.3d 1235, 1239 (11th Cir. 1999)).
Put another way, “claims are part of the same cause of action for res judicata
purposes when they arise out of the same transaction or series of transactions.”
Id.
at 1296–97. We have held that “the determination of whether the causes of action
in two proceedings are the same is governed by whether the primary right and duty
are the same.” Manning v. City of Auburn,
953 F.2d 1355, 1358 (11th Cir. 1992).
“The test is one of substance, not form.”
Id. Thus, the res judicata doctrine applies
“not only to the precise legal theory presented in the previous litigation, but to all
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legal theories and claims arising out of the same ‘operative nucleus of fact.’”
Id. at
1358–59 (quoting NAACP v. Hunt,
891 F.2d 1555, 1561 (11th Cir. 1990)).
Here, there was no dispute that the district court in the Southern District of
Florida was a “court of competent jurisdiction” when it dismissed Ailep I.
Additionally, the defendants in Ailep I and those in the instant case are identical,
satisfying the third element of res judicata. As to the second res judicata element,
Ailep did not argue before the district court that the dismissal of Ailep I was not a
final judgment nor does he make that argument on appeal. Accordingly, we need
not reach that issue. See Hamilton¸
680 F.3d at 1318–19.
Finally, Ailep’s preserved challenge—to the conclusion that he was raising
the same claims here as in Ailep I—fails. The injuries alleged in Ailep I and this suit
all center around the same deprivation of Ailep’s property following his move to
administrative confinement and the failure of prison officials to adequately remedy
it. The two actions were thus based on the same nucleus of operative facts, and the
district court did not err in applying the doctrine of res judicata to this action.
Accordingly, we affirm in this respect.1
1
To the extent Ailep also argues that the district court should have transferred his case
instead of dismissing it, we decline to address this argument, as he did not raise this argument to
the district court.
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II.
For the sake of thoroughness, we also address the district court’s alternative
basis for dismissing the action, i.e When a district court dismisses an action sua
sponte under
28 U.S.C. § 1915(e)(2)(B)(ii), the standard of review is the same as if
the district court had dismissed it in response to a motion under Federal Rule of Civil
Procedure 12(b)(6). Henley v. Payne,
945 F.3d 1320, 1331 (11th Cir. 2019). Thus,
our review of the dismissal is de novo, and we treat all factual allegations in the
operative complaint as true while taking all reasonable inferences in the plaintiff’s
favor.
Id. at 1326. To survive scrutiny under Rule 12(b)(6) or § 1915(e)(2)(B)(ii),
a complaint must contain sufficient factual matter which, accepted as true, states a
claim for relief that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678
(2009).
The Supreme Court has held that the Due Process Clause is not implicated
when a state official’s negligent act causes an unintended loss of life, liberty, or
property. Daniels v. Williams,
474 U.S. 327, 328 (1986). As for intentional
deprivations of property by state officials, the Supreme Court has held that no
Fourteenth Amendment violation occurs where a “meaningful postdeprivation
remedy” is available. Hudson v. Palmer,
468 U.S. 517, 533 (1984). “Hudson made
clear that as long as some adequate post deprivation remedy is available, no due
process violation has occurred.” Lindsey v. Storey,
936 F.2d 554, 561 (11th Cir.
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1991). For example, a civil cause of action for the wrongful taking of property by
agents of the state is an adequate remedy for an intentional deprivation of property.
Id. And Florida state tort law provides such a remedy for unauthorized seizures of
personal property by state officers. See
Fla. Stat. § 768.28 (waiving sovereign
immunity for “loss of property . . . caused by the negligent or wrongful act or
omission of any employee” of a state agency while acting within the scope of
employment); see also Case v. Eslinger,
555 F.3d 1317, 1331 (11th Cir. 2009).
“To state an Eighth Amendment claim under § 1983, a prisoner must allege
facts to satisfy both an objective and subjective inquiry regarding a prison official's
conduct.” Richardson v. Johnson,
598 F.3d 734, 737 (11th Cir. 2010). “Under the
objective component, a prisoner must allege a prison condition that is so extreme
that it poses an unreasonable risk of serious damage to the prisoner’s health or
safety.”
Id. Generally, “prison conditions rise to an Eighth Amendment violation
only if they ‘involve the wanton and unnecessary infliction of pain.’” Chandler v.
Crosby,
379 F.3d 1278, 1289 (11th Cir. 2004) (quoting Rhodes v. Chapman,
452
U.S. 337, 347 (1981)). As to the subjective component, “the prisoner must allege
that the prison official, at a minimum, acted with a state of mind that constituted
deliberate indifference.” Richardson,
598 F.3d at 737. “[D]eliberate indifference
has three components: (1) subjective knowledge of a risk of serious harm; (2)
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disregard of that risk; (3) by conduct that is more than mere negligence.”
Id. (quoting
Farrow v. West,
320 F.3d 1235, 1245 (11th Cir. 2003)).
Although the district court construed Ailep’s complaint as potentially alleging
that the deprivation of his property by the defendants was intentional, he did not
allege that the deprivation was done with the intent of causing him physical pain or
putting his health at risk, or that it actually caused him injury. We therefore conclude
that the district court did not err in determining that Ailep failed to state a claim
under the Eighth Amendment.
As to Ailep’s argument concerning his Fourteenth Amendment claim, this
argument confuses the availability of a meaningful post deprivation remedy for an
intentional deprivation of property with the provision of that remedy in his case.
Because Florida law provides for a civil action against the state and its agencies for
both intentional and negligent deprivations of property, and because we have held
that such a cause of action is sufficient, see Case,
555 F.3d at 1331, Ailep cannot
state a claim under the Fourteenth Amendment for intentional deprivation of
property. We therefore conclude that the district court did not err in determining
that Ailep failed to state a claim under the Fourteenth Amendment for intentional
deprivation of property.
Accordingly, for the reasons stated, we affirm the district court’s dismissal
of Ailep’s complaint.
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AFFIRMED.
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