J.G. Bernard, Jr. v. Charles Rosenberg

Case: 17-15271 Date Filed: 08/14/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15271
Non-Argument Calendar
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D.C. Docket No. 4:17-cv-00322-WS-CAS
J. G. BERNARD, JR.,
Plaintiff - Appellant,
versus
CHARLES ROSENBERG,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 14, 2018)
Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Mr. Bernard, acting pro se, appears to appeal the district court’s dismissal of
his case. 1 He attempted to obtain a writ of mandamus from the district court
against the former head of the DEA, Charles Rosenberg. He alleged a “massive
theft of pharmaceuticals” that occurred in “jails, prisons, state hospitals and
military bases,” leading to some sort of “very deadly public health crisis.”
In his first order, the magistrate judge found that the initial filing was
unsigned and thus was in violation of Fed. R. Civ. P. 11(a). He also found that it
violated Fed. R. Civ. P. 8(a)’s requirement of a “short and plain statement of the
grounds for the court's jurisdiction,” and that it failed to establish that venue was
proper. The magistrate judge provided Bernard with a civil complaint form,
explained the deficiencies, and gave him approximately three weeks in which to
file a new pleading.
Instead of complying, Bernard filed a “motion to expedite the proceeding,” a
“motion for an evidentiary hearing,” a “motion for extension of time to supplement
his petition,” and “supplemental pleadings of his original petition.” The magistrate
judge found that Bernard had not complied with the first order and that he had still
not shown venue. The magistrate judge also ordered that another civil complaint
form be mailed to Bernard.
1
His appellate filing is simultaneously titled a “brief,” a “petition for hearing enbanc [sic] cause
of action,” and a “brief memorandum of legal authorities in support of petition for hearing
enbanc [sic].”
2
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Again flaunting the magistrate judge’s order, Bernard did not make the
ordered corrections or fill out the form. Instead, he filed a “motion to supplement,
amend, change and expedite the proceeding.” The magistrate judge issued a report
and recommendation, advising that the case should be dismissed. Bernard still had
not filed an appropriate pleading, his allegations were “conclusory and
unsupported by any specific facts,” he had failed to show standing and venue, and
he had refused to follow the court’s orders. The district court adopted the report
and recommendation in full and dismissed the case. Bernard appealed. We affirm.
First, to whatever extent Bernard asks this court to grant a writ of
mandamus, we deny his request.
Second, the district court did not err in dismissing the case. We review for
an abuse of discretion. State Exch. Bank v. Hartline, 693 F.2d 1350, 1352 (11th
Cir. 1982). “While dismissal is an extraordinary remedy, dismissal upon disregard
of an order, especially where the litigant has been forewarned, generally is not an
abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
However, the court must typically find that the party acted willfully and that a
lesser sanction would not suffice to correct the inappropriate conduct. Zocaras v.
Castro, 465 F.3d 479, 483 (11th Cir. 2006). Although we give leniency to pro se
litigants, we do not have “license to serve as de facto counsel for a party or to
rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs.,
3
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Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations
omitted).
Here, the district court gave Bernard two chances to replead, wrote him
instructions on how to properly do so, and provided him with two copies of the
proper form. He refused to comply with the court order. The record sufficiently
supports a finding that Bernard acted willfully and that a lesser sanction would not
suffice, especially in light of the fact that Bernard did not comply after two
repleader orders. Cf., e.g., Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)
(affirming Rule 41(b) dismissal when counsel, inter alia, failed to submit a
preliminary statement despite the court’s “repeated insistence” that he do so).
Additionally, the magistrate judge warned him twice that failure to comply with
the order would result in dismissal. This further militates against an abuse of
discretion. Newsome, 863 F.2d at 837.
AFFIRMED.
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