Mamie A. Horne v. Social Security Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11445 ELEVENTH CIRCUIT
JANUARY 4, 2010
Non-Argument Calendar
JOHN P. LEY
________________________
ACTING CLERK
D. C. Docket No. 08-22334-CV-CMA
MAMIE A. HORNE,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
ATTORNEY GENERAL,
Eric Holder, Jr.,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Michael J. Astrue,
LINDA M. SPRINGER,
Director, OPM,
JOHN SNOW,
Director U.S. Treasury Department,
GEORGE ROMAGNOLI,
Pasco County Community Development , et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 4, 2010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Mamie A. Horne, proceeding pro se, appeals from the district court’s order
dismissing her pro se amended complaint, in which she alleged numerous
constitutional claims and tort claims against federal and state defendants. On
appeal, Horne argues that the district court erred in dismissing her amended
complaint. She asserts that the court failed to liberally construe her pro se
pleadings. In addition, she argues that the court erred by failing to allow her
brother, Morris J. Peavey, Jr., to intervene in her action pursuant to Fed.R.Civ.P.
24. Horne also raises claims related to the district court’s dismissal of her original
complaint. Specifically, she argues that the court abused its discretion by:
(1) failing to provide her with additional time to file a response to the defendants’
motions to dismiss her original complaint; and (2) denying her “Motion to Enter a
Document as Material to this Case.” For the reasons set forth below, we affirm.
I.
In August 2008, Horne, an African-American, filed a pro se complaint
naming the following agencies and individuals as defendants: (1) the Social
Security Administration (“SSA”); (2) Michael Mukasey, former U.S. Attorney
General; (3) Jo Anne Barnhart, Commissioner of the SSA; (4) Linda M. Springer,
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Director of the U.S. Office of Personnel Management (“OPM”); (5) John Snow,
Director of the U.S. Treasury Department (“USTD”); (6) George Romagnoli,
Director of the Pasco County Community Development Division (“PCCDD”); and
(7) Scott Black, Mayor of Dade City, Florida. In her complaint, Horne generally
alleged that the defendants had violated her rights to due process and equal
protection. She raised claims regarding the OPM’s and SSA’s decisions to deny
her disability benefits, the Internal Revenue Service’s (“IRS”) decision to place a
lien on her property, and Dade City’s and PCCDD’s reliance on zoning laws to
refuse to assist her in constructing a residential building on her property.
Thereafter, Horne filed a motion for leave to proceed in forma pauperis, which the
district court granted.
Romagnoli, acting on behalf of himself and PCDDD, filed a motion to quash
service of process. Black and Dade City filed a motion to dismiss Horne’s
complaint pursuant to Fed.R.Civ.P. 12(b)(6). Horne filed a motion seeking an
extension of time to file a response to the motions to dismiss her complaint. The
district court never ruled on this motion. In addition, Horne also filed a “Motion to
Enter a Document as Material to this Case.” Horne attached numerous documents
to this motion, including an affidavit by her brother, Peavey.
The magistrate judge entered a report and recommendation, finding that
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Horne’s complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). The
magistrate recommended that the court dismiss Horne’s complaint without
prejudice. After the magistrate entered its report and recommendation, the court
denied Horne’s “Motion to Enter a Document as Material in this Case,” noting that
the magistrate had recommended that Horne’s complaint should be dismissed with
leave to amend. The court subsequently entered an order in which it dismissed
Horne’s complaint without prejudice, and directed her to file an amended
complaint.
In her 120-paragraph amended complaint, Horne named the same defendants
as in her original complaint and asserted three primary claims: (1) the SSA and the
OPM erroneously denied her disability benefits despite the fact that she was a
former employee of the U.S. Department of Justice (“DOJ”) and had sustained a
debilitating back injury in 1986; (2) the USTD, through the IRS, erroneously
delayed its payment of her tax returns and placed a lien on her property; and
(3) Dade City and PCCDD erroneously denied her the right to repair or construct
residential property on her land. While Horne did not clearly state which cause of
action she relied on as to each defendant, she indicated that she was bringing her
action pursuant to 42 U.S.C. § 1983, 5 U.S.C. § 8347(c), 5 U.S.C. § 706, 42 U.S.C.
§ 5301(c), 18 U.S.C. §§ 1001 and 1027, and Bivens v. Six Unknown Named Agents,
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403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Horne appeared to allege that
the OPM and the SSA had acted “maliciously and intentionally” by denying her
disability benefits, and violated the equal protection clause by treating her
differently from other disabled individuals. In addition, the IRS had taken actions
against her and Peavey in a “malicious and intentional” manner. Romagnoli,
PCCDD, Black, and Dade City had effected an unconstitutional taking of her
property and violated her right to equal protection by denying her the opportunity
to construct a residential building on her land. In addition, Romagnoli had misled
her into believing that PCCDD would assist her in constructing a new home on her
land.
The magistrate entered another report and recommendation, finding that
Horne’s amended complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B)
because the complaint (1) was frivolous and malicious; (2) failed to state a claim
upon which relief could be granted; and (3) sought relief against a defendant who
was immune from such relief. The magistrate found that Horne failed to make a
short and plain statement of her grounds for relief, as required by Fed.R.Civ.P.
8(a)(2). The magistrate also found that the SSA, the Attorney General, the
Commissioner of the SSA, the Director of the USTD, and the Director of the OPM
were immune from suit as governmental agencies or individuals sued in their
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official capacities. The magistrate determined that, pursuant to 5 U.S.C. § 8347(c),
decisions by the OPM were “final and conclusive” and not subject to review other
than by the Merit Systems Protection Board (“MSPB”). The magistrate
determined that Horne’s reliance on 5 U.S.C. § 706 and 18 U.S.C. § 1001 was
misplaced, as the former statute did not provide the court with jurisdiction to
review the SSA’s denial of benefits, and the latter was a criminal statute that did
not provide Horne with a private cause of action. As to Horne’s claims against
Romagnoli, PCCDD, Black, and Dade City, the magistrate found that, even
assuming that Horne raised colorable claims against these defendants, venue was
improper under 28 U.S.C. § 1391(b). While the magistrate made factual findings
regarding the residences of Romagnoli, PCCDD, Black, and Dade City for
purposes of § 1391(b), the magistrate did not make any findings regarding the
residences of the federal defendants, and did not discuss the presence of the federal
defendants in its § 1391(b) analysis.
The district court adopted the magistrate’s report and recommendation over
Horne’s objections. Horne filed a notice of appeal, specifying that she appealed
from the court’s order dismissing her amended complaint.
II.
We review “a district court’s dismissal of an in forma pauperis action as
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frivolous under [28 U.S.C.] § 1915(e)(2)(B)(i) for abuse of discretion.” Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002). “For
purposes of a dismissal under § 1915(e)(2)(B)(i), a claim is frivolous if it is
without arguable merit either in law or fact.” Id. (quotation and alteration omitted).
We review de novo, however, a district court’s determination that a defendant is
entitled to sovereign immunity. LeFrere v. Quezada, 582 F.3d 1260, 1263 (11th
Cir. 2009).
We review de novo a district court’s dismissal of a complaint under
§ 1915(e)(2)(B)(ii) for failure to state a claim. Alba v. Montford, 517 F.3d 1249,
1252 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008). When reviewing the district
court’s determination that a plaintiff failed to state a claim under
§ 1915(e)(2)(B)(ii), the standards governing dismissals under Fed.R.Civ.P.
12(b)(6) apply. Id. When reviewing a court’s dismissal of a complaint pursuant to
Rule 12(b)(6), we accept the factual allegations in the complaint as true and
construe them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d
1334, 1335 (11th Cir. 2003). In addition, we liberally construe a pro se litigant’s
pleadings. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Our duty to
liberally construe a pro se litigant’s pleadings, however, “is not the equivalent of a
duty to re-write it for the plaintiff.” Snow v. DirecTV, Inc., 450 F.3d 1314, 1320
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(11th Cir. 2006) (quotation and alteration omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007) (quotation
and alteration omitted). “Factual allegations must be enough to raise a right to
relief above the speculative level.” Id. at 555, 127 S.Ct. at 1965. Pursuant to
Fed.R.Civ.P. 8(a)(2), the plaintiff must make a plain statement demonstrating her
right to relief. Id. at 557, 127 S.Ct. at 1966. In addition, a plaintiff must satisfy a
heightened pleading standard when alleging a civil rights violation under Bivens or
§ 1983. See Dalrymple v. Reno, 334 F.3d 991, 993, 996-97 (11th Cir. 2003)
(Bivens action); Epps v. Watson, 492 F.3d 1240, 1242 (11th Cir. 2007) (§ 1983
action). We have explained that:
In such cases, the complaint must allege the relevant facts with some
specificity. More than mere conclusory notice pleading is required. A
complaint will be dismissed as insufficient where the allegations it
contains are vague and conclusory . . . . Unsupported conclusions of
law or of mixed fact and law have long been recognized not to prevent
a Rule 12(b)(6) dismissal. We must also keep in mind the fact that we
generally accord official conduct a presumption of legitimacy.
Id. at 996 (quotations, citations, and alterations omitted).
III.
The United States government may not be sued without its consent, and this
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immunity extends to federal government agencies. Asociacion de Empleados del
Area Canalera (ASEDAC) v. Panama Canal Com’n, 453 F.3d 1309, 1315 (11th
Cir. 2006). “[T]he existence of [the government’s] consent is a prerequisite for
jurisdiction.” Id. The Supreme Court has held, however, that federal officials may
be sued in their individual capacities for violations of an individual’s constitutional
rights. Bivens, 403 U.S. at 397, 91 S.Ct. at 2005. While a plaintiff may bring a
Bivens action against a federal officer in his individual capacity, a plaintiff may not
bring a Bivens action against a federal agency or a federal officer acting in his
official capacity. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71, 122 S. Ct.
515, 521-22, 151 L. Ed. 2d 456 (2001) (holding that Bivens is “solely concerned
with deterring the unconstitutional acts of individual officers); F.D.I.C. v. Meyer,
510 U.S. 471, 486, 114 S. Ct. 996, 1005-06, 127 L. Ed. 2d 308 (1994) (declining to
permit a damages remedy under Bivens against federal agencies).
The Supreme Court has declined to imply a Bivens remedy for monetary
damages for people improperly denied social security benefits. Schweiker v.
Chilicky, 487 U.S. 412, 425-29, 108 S. Ct. 2460, 2468-71, 101 L. Ed. 2d 370 (1998).
In addition, “[t]he Office of Personnel Management . . . determines questions of
disability and dependency in administering the government’s provision of annuities
to retired employees and their dependents.” Lindahl v. Office of Personnel
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Management, 470 U.S. 768, 771, 105 S. Ct. 1620, 1623, 84 L. Ed. 2d 674 (1985)
(quotation and alterations omitted). The OPM’s determinations as to these matters
are not subject to review, except by the MSPB. Id.; 5 U.S.C. § 8347(c) and (d).
Judicial review of MSPB decisions is available only to determine whether “there
has been a substantial departure from important procedural rights, a
misconstruction of the governing legislation, or some like error going to the heart
of the administrative determination.” Lindahl, 470 U.S. at 791, 105 S.Ct. at 1633.
(quotation omitted).
Under the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”), the federal
government has waived its immunity regarding negligent or wrongful actions
committed by its employees within the scope of their official duties. 28 U.S.C.
§ 1346(b)(1). Constitutional claims, however, are not cognizable under the FTCA.
See Meyer, 510 U.S. at 477-80, 114 S.Ct. at 1001-02. We have recognized that
there is a “discretionary function exception” to the FTCA’s waiver of immunity.
Nguyen v. United States, 556 F.3d 1244, 1250-51 (11th Cir. 2009). Under this
exception, the government remains shielded from liability if its employee
committed the allegedly tortious act in the exercise of a discretionary function. Id.
In order to determine whether the governmental employee was performing a
discretionary function, a court must consider: (1) “whether the conduct involves an
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element of judgment or choice”; and (2) “whether the judgment or choice is
grounded in considerations of public policy.” Id. at 1251 n.2.
Here, the district court did not err in finding that Horne failed to state a
claim for relief against the federal defendants under 28 U.S.C. § 1915(e)(2)(B)(ii).
To the extent that Horne effectively sought to bring a Bivens action against the
OPM, the SSA, and the USTD as agencies, or against Mukasey, Barnhart,
Springer, and Snow in their official capacities, the action was properly dismissed
because Bivens permits suits only against federal agents in their individual
capacities. Moreover, the Supreme Court has specifically held that a plaintiff may
not bring a Bivens action for money damages against the SSA. To the extent that
Horne sought to bring a Bivens action against Mukasey, Barnhart, Springer, and
Snow in their individual capacities, Horne failed to satisfy the heightened pleading
requirement for a Bivens action because her conclusory allegations failed to
explain how these officials violated her constitutional rights. To the extent that
Horne sought to proceed against the federal defendants under the FTCA, her
claims were properly dismissed because she did not specify any theory of tort
liability or identify any specific tortious acts by the defendants. In addition, Horne
failed to allege facts indicating that she was entitled to judicial review of the
OPM’s denial of her claim for disability benefits because she did not allege that the
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MSPB affirmed the OPM’s decision in a proceeding that violated her substantial
procedural rights or involved a misconstruction of governing legislation. The
additional statutes that Horne cited in her complaint did not demonstrate that she
was entitled to relief.
Accordingly, the district court did not err in finding that her claims against
the federal defendants were subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(i)
and (iii). For these same reasons, the court did not abuse its discretion in finding
that her complaint was frivolous under § 1915(e)(2)(B)(ii).
IV.
While the district court dismissed Horne’s claims against the state
defendants for improper venue under 28 U.S.C. § 1391(b), the court failed to
discuss the impact of the federal defendants on its § 1391(b) analysis or make
factual findings regarding the residences of the federal defendants. Because it is
unclear how the federal defendants affected venue in this case, it is unclear whether
the district court properly dismissed Horne’s claims against the state defendants for
lack of venue under § 1391(b). Nevertheless, even if the district court erred in its
venue analysis, we may affirm the court’s dismissal of Horne’s claims against the
state defendants on alternative grounds. See Koziara v. City of Casselberry, 392
F.3d 1302, 1306 n.2 (11th Cir. 2004).
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“In order to prevail on an action under § 1983, a plaintiff must show that he
was deprived of a federal right by a person acting under color of state law.” Griffin
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Municipalities and
other local government entities are “persons” within the scope of § 1983, and are
thus subject to § 1983 liability. Monell v. Department of Social Services of City of
New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978).
Where an officer is sued under § 1983 in his official capacity, the suit is actually a
proceeding against the municipality the officer represents. Abusaid v.
Hillsborough County Bd. of County Com’rs, 405 F.3d 1298, 1302 n.3 (11th Cir.
2005). In order “to impose § 1983 liability on a municipality, a plaintiff must
show: (1) that his constitutional rights were violated; (2) that the municipality had
a custom or policy that constituted deliberate indifference to that constitutional
right; and (3) that the policy or custom caused the violation.” McDowell v. Brown,
392 F.3d 1283, 1289 (11th Cir. 2004).
“The State of Florida and its subsidiaries-including municipalities-are
generally immune from tort liability.” Lewis v. City of St. Petersburg, 260 F.3d
1260, 1262 (11th Cir. 2001). Florida has waived its immunity from tort liability
under circumstances where the state agency, if a private person, would be liable in
tort. Id. Under Florida law, the elements of fraud are:
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(1) a false statement concerning a specific material fact; (2) the
maker’s knowledge that the representation is false; (3) an intention
that the representation induces another’s reliance; and (4) consequent
injury by the other party acting in reliance on the representation.
Lopez-Infante v. Union Cent. Life Ins. Co., 809 So. 2d 13, 15 (Fla. 3d Dist Ct. App.
2002).
In Baytree of Inverrary Realty Partners v. City of Lauderhill, we affirmed a
district court’s dismissal of a plaintiff’s claim that the city effected an unlawful
taking of its property by refusing to amend its zoning laws so that the plaintiff
could use its property for residential construction. 873 F.2d 1407, 1410 (11th Cir.
1989). We noted that the plaintiff had merely been barred from building
residential property on the land, and had not been barred from developing the
property in another manner. Id. at 1410. We explained that, “Neither deprivation
of the most beneficial use of land, nor a severe decrease in the value of property,
measures up to an unlawful taking.” Id. (quotation omitted).
To the extent that Horne intended to bring § 1983 claims against Dade City
and PCCDD as agencies, or against Romagnoli and Black in their official
capacities, her claims were properly dismissed because she did not allege that the
municipality employed a custom or policy that caused her constitutional rights to
be violated. In addition, she failed to allege specific facts indicating that
Romagnoli individually took any action that violated a constitutional right, and
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failed to allege that Black individually took any actions at all. Thus, Horne’s
conclusory allegations were insufficient to state a § 1983 claim against Romagnoli
or Black. To the extent that she intended to raise a fraud claim against Romagnoli,
PCCDD, and Dade city, she did not identify any specific material
misrepresentations that these defendants made, and did not allege that these
defendants made any such misrepresentation with the intent that she rely on it.
Accordingly, Horne failed to allege a plausible tort claim against Romagnoli,
PCCDD, and Dade City. To the extent that Horne alleged that the state defendants
effected an unlawful taking of her property, Horne alleged only that the city would
not permit her to use her property for residential purposes, not that the city
prevented her from developing her property in any manner. Thus, under our
controlling case law, she failed to allege an unlawful taking as a matter of law.
For the foregoing reasons, Horne’s complaint would properly have been
dismissed as to the state defendants for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii).
V.
We note that Horne did not specify the district court’s order dismissing her
original complaint in her notice of appeal. Under Fed.R.App.P. 3(c)(1), an
appellant must, in her notice of appeal, specify the judgment or order being
15
appealed from. Fed.R.App.P. (3)(c)(1)(B). However, we have recognized that “an
appeal is not lost if a mistake is made in designating the judgment appealed from
where it is clear that the overriding intent was effectively to appeal” a judgment not
specified in the notice of appeal. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th
Cir. 1986). Furthermore, as noted above, this Court liberally construes the
pleadings of pro se litigants. Powell, 914 F.2d at 1463. Accordingly, we discuss
Horne’s claims related to the dismissal of her original complaint below.
“District courts enjoy broad discretion in deciding how best to manage the
cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366-67
(11th Cir. 1997). However, “when a litigant’s rights are materially prejudiced by
the district court’s mismanagement of a case, we must redress the abuse of
discretion.” Id. at 1367. In civil cases, we generally do not consider arguments
raised for the first time on appeal. Ledford v. Peeples, 568 F.3d 1258, 1298 (11th
Cir. 2009).
The district court did not abuse its discretion by: (1) failing to provide Horne
with additional time to respond to the defendants’ motions to dismiss her original
complaint; or (2) denying Horne’s “Motion to Enter a Document as Material to this
Case.” Even assuming that the court erred in taking these actions, Horne was not
prejudiced because the court expressly provided her with an opportunity to amend
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her complaint. Moreover, neither Horne nor Peavey sought permission from the
district court for Peavey to intervene in Horne’s action. Accordingly, Horne seeks
to raise this argument for the first time on appeal, and we will not consider it.
Conclusion
Accordingly, based upon our review of the record and the parties’ briefs on
appeal, we affirm.
AFFIRMED.
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