Maurice A. Johnson v. Gabriel Ortiz

USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13547
Non-Argument Calendar
____________________
MAURICE A. JOHNSON,
Plaintiff-Appellant,
versus
GABRIEL ORTIZ,
Individually and in his Official Capacity,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cv-00598-CEM-GJK
____________________
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 2 of 9
2 Opinion of the Court 20-13547
Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.
PER CURIAM:
Maurice Johnson, proceeding pro se, appeals the district
court’s grant of summary judgment in favor of Officer Gabriel
Ortiz on Johnson’s excessive-force claim under 42 U.S.C. § 1983.
Johnson principally argues that the district court erred when it re-
fused to consider his response opposing summary judgment on the
ground that he failed to comply with 28 U.S.C. § 1746. Johnson
also asserts that the court should have granted him leave to amend
his response or dismissed his case without prejudice so that he
could refile. Finally, Johnson contends that the district court failed
to give him adequate notice of the summary judgment rules con-
cerning his “right to file affidavits or other material in opposition
to the motion.” Br. of Appellant at 8 (quoting Griffith v. Wain-
wright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam)). We affirm
the district court’s order because even if the district court erred in
refusing to consider Johnson’s affidavit or to allow him leave to
amend, those errors were harmless, and because Johnson received
adequate notice of the summary judgment procedures. 1
1We review de novo a district court’s grant of summary judgment and apply
the same standard that bound the district court. Carter v. Galloway, 352 F.3d
1346, 1348 (11th Cir. 2003) (per curiam). We review a “district court’s decision
to grant or deny leave to amend . . . for abuse of discretion.” Forbus v. Sears
Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994).
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 3 of 9
20-13547 Opinion of the Court 3
We may affirm a district court’s grant of summary judgment
if the appellee presents “any adequate ground for doing so, regard-
less of whether it is the one on which the district court relied.” Fitz-
patrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993). Sum-
mary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing whether the
movant has met this burden, a reviewing court must “view all of
the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party’s favor.” Furcron
v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016) (quo-
tation marks omitted). “Once the moving party has properly sup-
ported its motion for summary judgment, the burden shifts to the
nonmoving party to come forward with specific facts showing that
there is a genuine issue for trial.” Int’l Stamp Art, Inc. v. U.S. Postal
Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (per curiam) (quotation
marks omitted).
Here, the district court declined to consider Johnson’s re-
sponse to Ortiz’s motion for summary judgment because neither
Johnson’s response nor his “certificate of service” in support of his
response contained a certification with the precise wording re-
quired by 28 U.S.C. § 1746 for unsworn affidavits. 2 We need not
2“The court on summary judgment may consider a declaration executed in
accordance with [§ 1746] as an affidavit.” United States v. Four Parcels of Real
Prop., 941 F.2d 1428, 1444 n.36 (11th Cir. 1991) (en banc). Section 1746 states
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 4 of 9
4 Opinion of the Court 20-13547
decide whether the language that Johnson used in his “certificate
of service” substantially complied with § 1746 because even assum-
ing that Johnson’s language was sufficient and that the district court
erred in refusing to consider his response, the error was harmless.
See Fed. R. Civ. P. 61. Even if the district court had considered the
facts contained in Johnson’s response, Ortiz would have been—and
is—entitled to qualified immunity.
“To be entitled to qualified immunity, an official must first
prove that he was acting within the scope of his discretionary au-
thority when the allegedly wrongful acts occurred.” Mikko v. City
of Atlanta, 857 F.3d 1136, 1143–44 (11th Cir. 2017) (quotation
marks omitted). It is undisputed that Ortiz was acting within the
scope of his discretionary authority. Accordingly, “the burden
shifts to [Johnson] to establish (1) that [Ortiz] violated a statutory
or constitutional right, and (2) that the right was clearly established
at the time of the challenged conduct.” Id. at 1144 (quotation
marks omitted). Although courts need not address these two
prongs in any particular order, both must be satisfied to deny qual-
ified immunity. Roberts v. Spielman, 643 F.3d 899, 904 (11th Cir.
2011) (per curiam).
that an unsworn declaration must be “in writing of such person which is sub-
scribed by him, as true under the penalty of perjury” and must be made in
substantially the following form: “I declare (or certify, verify, or state) under
penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature).” 28 U.S.C. § 1746 (quotation marks omitted).
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 5 of 9
20-13547 Opinion of the Court 5
We start—and find that we can end—with the question
whether Ortiz violated a “clearly established” right. “A right may
be clearly established for qualified immunity purposes in one of
three ways: ‘(1) case law with indistinguishable facts clearly estab-
lishing the constitutional right; (2) a broad statement of principle
within the Constitution, statute, or case law that clearly establishes
a constitutional right; or (3) conduct so egregious that a constitu-
tional right was clearly violated, even in the total absence of case
law.’” Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291–92
(11th Cir. 2009) (citations omitted).
If the district court had considered the allegations contained
in Johnson’s response, the relevant facts for the purpose of analyz-
ing this case would be as follows: Johnson got into an altercation
with Kijana Graham and stabbed her in self-defense. After he
stabbed her, Johnson dropped his knife and attempted to tend to
the stab wound he had inflicted. Patrolling nearby, Officer Ortiz
heard a verbal argument followed by screaming and ran to the
scene to investigate. Arriving at the scene, Ortiz saw Johnson lean-
ing over a bleeding Graham. Johnson raised his empty hands upon
seeing Ortiz, at which point—and without a verbal warning—Ortiz
shot at Johnson three times, twice hitting him in the chest.
Even if the district court had considered these facts, as John-
son insists it should have, Johnson would not have shown the vio-
lation of a clearly established right. He doesn’t provide an example
of a case with materially indistinguishable facts. Lewis, 561 F.3d at1291–92. Nor does he argue that “a broad statement of principle
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 6 of 9
6 Opinion of the Court 20-13547
within the Constitution” clearly established his right to be free
from the force that Ortiz used. Id. at 1292. Nor, finally, does he
argue that Ortiz’s conduct was so egregious as to clearly establish
a constitutional right even in the absence of caselaw. Id. For that
matter, Johnson’s opening brief in this Court doesn’t even mention
qualified immunity. And, even if we read his brief liberally—as we
must, given his pro se status—and proceed on the assumption that
he has challenged the district court’s qualified-immunity determi-
nation by arguing that the district court erred in refusing to con-
sider his summary judgment response, 3 we nonetheless conclude
that no clearly established law prohibited Ortiz’s conduct. Accord-
ingly, even if the district court had considered his affidavit, Johnson
could not have prevailed. We can therefore affirm the district
court’s grant of summary judgment on the ground that Ortiz is en-
titled to qualified immunity.
Johnson also argues that the district court should have al-
lowed him to amend his complaint. But that argument fails for the
same basic reason. “[D]istrict courts have broad discretion to allow
pleading amendments even when a party does not formally request
leave.” Pinnacle Advert. & Mktg. Grp., Inc. v. Pinnacle Advert. &
Mktg. Grp., LLC, 7 F.4th 989, 1000 (11th Cir. 2021). A district court
3 Johnson’s response in opposition to summary judgment argues that Ortiz
was not entitled to qualified immunity. But we have also said that “[w]hile we
read briefs filed by pro se litigants liberally, issues not briefed on appeal by a
pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (per curiam) (citations omitted).
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 7 of 9
20-13547 Opinion of the Court 7
should “freely” give leave to amend in the absence of any apparent
or declared reason, such as “futility of amendment.” Foman v. Da-
vis, 371 U.S. 178, 182 (1962) .Although we have held that a pro se
plaintiff generally should be given at least one chance to amend a
complaint before the district court dismisses his action with preju-
dice, leave to amend is not required where such amendment would
be futile—for instance, because the “complaint as amended would
still be properly dismissed.” Silberman v. Miami Dade Transit, 927
F.3d 1123, 1132–33 (11th Cir. 2019) (quotation marks omitted).
Here, amendment would have been futile. As already explained,
Johnson has not pointed to any case with facts materially indistin-
guishable that might clearly establish the rights that he says Ortiz
violated. Nor has our own research revealed such a case. Because
re-pleading would not change the fact that Ortiz is entitled to qual-
ified immunity, amending Johnson’s complaint would have been
futile. 4
Finally, although Johnson contends that he didn’t receive
notice from the district court informing him of “his right to file af-
fidavits or other material in opposition to the motion and the con-
sequences of default,” Br. of Appellant at 8 (quoting Griffith, 772
F.2d at 825), the court did give Johnson express notice of his obli-
gations under Rule 56 and an opportunity to respond when the
4 Notably, much of the evidence in Johnson’s response was previously pro-
vided in the amended complaint or Ortiz's exhibits, which the district court
considered, and the remaining exhibits had no impact on the court's conclu-
sion that Ortiz was entitled to qualified immunity.
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 8 of 9
8 Opinion of the Court 20-13547
court entered its order requiring Johnson to file a response to
Ortiz’s motion for summary judgment, See Massey v. Congress
Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997); Griffith, 772 F.2d
at 825. The order specifically explained Johnson’s obligation to re-
spond with “sworn affidavits or documents” showing there is a
genuine dispute and explained the consequences of failing to do so.
Doc. 41 at 1.
* * *
Any error that the district court might have committed in
failing to credit Johnson’s affidavit opposing summary judgment
was harmless. The district court did not err by refusing to grant
leave to amend because any amendment would be futile. And the
district court provided Johnson adequate notice that he was re-
quired to respond to Ortiz’s motion for summary judgment with
appropriate evidence.
AFFIRMED.
USCA11 Case: 20-13547 Date Filed: 05/02/2022 Page: 9 of 9
20-13547 JORDAN, J., Concurring 1
JORDAN, Circuit Judge, concurring:
I join the court’s opinion and add the following about Mr.
Johnson’s Fourth Amendment claim.
Like Justice Thomas, I believe the Supreme Court’s qualified
immunity jurisprudence is not faithful to the text of 42 U.S.C. §
1983 and rests on shaky historical and doctrinal grounds. See, e.g.,
Hoggard v. Rhodes, 141 S. Ct. 2421, 2421–22 (2021) (Thomas, J.,
respecting the denial of certiorari); Baxter v. Bracey, 140 S. Ct.
1862, 1862–64 (2020) (Thomas, J., dissenting from the denial of cer-
tiorari); Schantz v. DeLoach, No. 20-10503, 2021 WL 4977514, at
*12 (11th Cir. Oct. 26, 2021) (Jordan, J., concurring). But given the
Court’s recent qualified immunity decisions, see, e.g., City of
Tahlequah v. Bond, 142 S.Ct. 9, 11–12 (2021), I agree that Officer
Ortiz is entitled to qualified immunity even under Mr. Johnson’s
version of the facts (which included Mr. Johnson over the bleeding
victim with his hands on her neck and chest).