Cleve L. Molette v. The State of Georgia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10581 ELEVENTH CIRCUIT
MARCH 27, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Docket No. 1:10-cv-01403-CAP
CLEVE L. MOLETTE,
Plaintiff-Appellant,
versus
THE STATE OF GEORGIA, et al.
WILLIAM BOWEN,
Newton Co. Deputy Sheriff; in Official Capacity only,
THE COUNTY OF NEWTON, GA.,
Defendants-Appellees.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(March 27, 2012)
Before TJOFLAT, EDMONDSON, and FAY, Circuit Judges.
PER CURIAM:
Cleve L. Molette, proceeding pro se, appeals the district court’s dismissal of
his 42 U.S.C. § 1983 lawsuit for failure to state a claim, Fed.R.Civ.P. 12(b)(6). No
reversible error has been shown;1 we affirm.
Molette’s suit arose from his arrest for loitering and the resulting seizure of
his handgun. He contends both acts violated his Fourth Amendment rights. In his
first amended complaint, Molette named as defendants the State of Georgia, three
state prosecutors, Newton County Deputy Sheriff William Bowen, and two other
deputy sheriffs. In a June 2010 order, the district court dismissed Molette’s claims
against the State of Georgia and against the state prosecutors as barred by the
Younger abstention doctrine2 and dismissed as moot Molette’s motion seeking to
enjoin the state’s criminal proceedings against him.
Molette then filed a second amended complaint, naming only Bowen, in his
official capacity, and Newton County, Georgia as defendants.3 Molette alleged
that Bowen violated his Fourth Amendment rights and that -- because Bowen was
a county employee who was acting within the scope of his authority and in
furtherance of county business -- Newton County was vicariously liable for
1
Molette’s motion for leave to file a second reply brief is granted.
2
Younger v. Harris, 91 S.Ct. 746 (1971).
3
In doing so, Molette abandoned expressly his claim against Bowen in his individual capacity and
his claims against the two other deputy sheriffs identified in his first amended complaint.
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Bowen’s acts under the theory of respondeat superior. On 6 January 2011, the
district court granted Bowen’s and Newton County’s motion to dismiss the
complaint for failure to state a claim, pursuant to Rule 12(b)(6). The district court
also denied as moot Bowen’s and Newton County’s motion to stay discovery and
denied Molette’s motion for summary judgment.
As an initial matter, we must first determine the scope of our jurisdiction
over this appeal. Fed.R.App.P. 3(c)(1)(B) requires that a notice of appeal
“designate the judgment, order, or part thereof being appealed.” “Although we
generally construe a notice of appeal liberally, we will not expand it to include
judgments and orders not specified unless the overriding intent to appeal these
orders is readily apparent on the face of the notice.” Osterneck v. E.T. Barwick
Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). When a notice of appeal
names a specific order to be appealed, “we must infer that the appellant did not
intend to appeal other unmentioned orders or judgments.” Id. at 1529; see also
Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2011) (explaining that when
the appellant listed a specific order in his pro se notice of appeal, we lacked
jurisdiction to review claims that were dismissed in an earlier unnamed order).
In his notice of appeal, Molette stated that he sought to appeal “from the
order granting Motion to Dismiss; denying as moot Motion to Stay; [and] denying
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Motion for Summary Judgment entered in this action on the 6th day of January,
2011.” In addition, the caption of his notice of appeal listed only Bowen and
Newton County as defendants -- not the State of Georgia or the state prosecutors.
Because Molette identified only the district court’s 6 January 2011 order in his
notice of appeal and because nothing on the face of the notice otherwise evidenced
that he also intended to appeal the court’s June 2010 order, we lack jurisdiction to
consider the district court’s dismissal of Molette’s claims against the State of
Georgia and against the state prosecutors or to consider the district court’s denial
of Molette’s motion to enjoin the state’s criminal proceedings. See Osterneck, 825
F.2d at 1528-29.
On appeal, Molette argues that the district court erred in dismissing his
second amended complaint for failure to state a claim. We review de novo the
district court’s grant of a Rule 12(b)(6) motion to dismiss for failure to state a
claim, accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff. Mills v. Foremost Ins. Co., 511 F.3d 1300,
1303 (11th Cir. 2008). In addition, we construe liberally pro se pleadings. See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
We first address Molette’s claim against Bowen in his official capacity. “A
suit against a public official in his official capacity is . . . treated as a suit against
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the local government entity he represents, assuming that the entity receives notice
and an opportunity to respond.” McMillian v. Johnson, 88 F.3d 1573, 1576 n.2
(11th Cir. 1996) (citing Ky. v. Graham, 105 S.Ct. 3099, 3105 (1985)). Given this
rule, our analysis of section 1983 official-capacity claims against Georgia sheriffs
typically begins with a determination of whether the sheriff represented the state
or the county when he engaged in the alleged unconstitutional conduct. See Grech
v. Clayton Cnty., 335 F.3d 1326, 1330-32 (11th Cir. 2003) (en banc). We agree
with the district court that such an inquiry is unnecessary in this case, however,
because Molette’s claim fails under either view.
If we assume, without deciding, that Bowen represented Newton County,
then we treat Molette’s claim as one against the county. To establish Newton
County’s liability under section 1983, Molette must identify a county policy --
meaning either “an officially promulgated county policy” or “an unofficial custom
or practice of the county shown through the repeated acts of a final policymaker
for the county” -- that caused his injuries. See id. at 1329. Even construing
liberally Molette’s pro se complaint, he failed to identify such a policy or custom.
As a result, he failed to state a claim for relief.
On the other hand, if we assume, without deciding, that Bowen represented
the State of Georgia, Molette’s claim still fails to state a claim under section 1983.
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“[T]o prevail on a civil rights action under § 1983, a plaintiff must show that he or
she 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) (emphasis
added). But the United States Supreme Court has concluded that “neither a State
nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will
v. Mich. Dep’t of State Police, 109 S.Ct. 2304, 2312 (1989). Thus, the district
court concluded correctly that Molette’s claim against Bowen failed to state a
claim under section 1983 regardless of whether Bowen was acting as a
representative of the county or of the state.
The district court also dismissed properly Molette’s claim against Newton
County based on respondeat superior because it is well-established that “[a]
county’s liability under § 1983 may not be based on the doctrine of respondeat
superior.” See Grech, 335 F.3d at 1329.
AFFIRMED.
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