Mel Abele v. Grant Tolbert

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14945 MARCH 29, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-01883-CV-T-26-TGW
MEL ABELE,
Plaintiff-Appellant,
versus
GRANT TOLBERT,
RON ALIFF,
DOES, Does: One, Two, Three,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 29, 2006)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Mel Abele appeals pro se an order that dismissed his Second Amended
Complaint for failure to state a claim under the Racketeer Influenced and Corrupt
Organizations Act and refused to exercise supplemental jurisdiction over his
remaining claims on the ground that they arose only under state law. Because
Abele failed to allege the defendants committed predicate acts that would
constitute a pattern of racketeering activity, we affirm the dismissal with prejudice
of Abele’s claim under the RICO Act. Because we conclude Abele stated a claim
that the defendants violated his right to due process of law, we reverse the
dismissal of that claim and remand for further proceedings.
I. BACKGROUND
Abele filed a complaint against Grant Tolbert, Ron Aliff, and three unnamed
defendants that alleged violations of the Takings Clause of the Fifth and
Fourteenth Amendments, the RICO Act, principles of constitutional due process
and various state laws when the defendants destroyed and condemned several of
Abele’s properties, removed electric meters from four private residences, and
refused to issue Abele several permits. The district court dismissed sua sponte
Abele’s complaint for a lack of subject matter jurisdiction. We reversed and held
that “Abele’s complaint raised several federal questions: (1) whether the
defendants violated the Racketeer Influenced and Corrupt Organizations Act
2
(RICO), 18 U.S.C. section 1961 et seq.; (2) whether the defendants violated
Abele’s constitutional right to due process of law; and (3) whether the defendants
violated the Takings Clause of the Fifth and Fourteenth Amendments to the
Constitution.” Abele v. Tolbert, No. 04-14885 (11th Cir. May 3, 2005) (per
curiam). On remand, the district court instructed Abele to file an amended
complaint, but dismissed sua sponte Abele’s amended complaint because it was a
“‘quintessential shotgun pleading’ of the type that the Eleventh Circuit Court of
Appeals has repeatedly condemned.” Abele followed the order of the district court
to refile his complaint.
In his Second Amended Complaint, Abele alleged: (1) Ron Aliff demolished
one of Abele’s properties “without any legal notice as required by Federal and
States Statutes” and “the ‘agency’ failed to grant the bare essentials of law” and
violated protections guaranteed by the Florida and Federal Constitutions when it
failed to seek injunctive relief as required by state law; (2) Aliff wrongly denied,
under state law, a building permit for a property Abele sold; and (3) Ron Aliff and
Grant Tolbert violated various state laws and the RICO Act when, without proper
notice or court orders, they ordered the removal of the electric meter from a mobile
home on property zoned for agricultural use.
The defendants moved to dismiss the Second Amended Complaint for
3
failure to state a claim upon which relief can be granted. See Fed. R. Civ. P.
12(b)(6). The district court concluded that Abele failed to state a claim under the
RICO Act and dismissed that claim with prejudice. The district court determined
that Abele’s remaining allegations sought “relief solely pursuant to Florida law”
and dismissed them without prejudice after declining to exercise its supplemental
jurisdiction. Abele again seeks our review.
II. STANDARD OF REVIEW
“We review the dismissal of a complaint for failure to state a claim de novo,
construing all allegations in the complaint as true and in the light most favorable to
the plaintiff.” Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 208
F.3d 1308, 1310 (11th Cir. 2000) (internal citation omitted). “A motion to dismiss
is only granted when the movant demonstrates ‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’”
Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957)).
III. DISCUSSION
Because Abele appeals pro se, we “construe [his] complaint more liberally
than [we] would formal pleadings drafted by lawyers.” Powell v. Lennon, 914
F.2d 1459, 1463 (11th Cir. 1990). We also construe liberally his arguments on
4
appeal. See McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir. 1994); Saleem v.
Evans, 866 F.2d 1313, 1315 & n.2 (11th Cir. 1989). Although Abele’s appeal
briefs are almost indecipherable, we construe them to include two arguments: (1)
he stated a claim upon which relief could be granted under the RICO Act; and (2)
he sought relief under federal law and stated a claim of violation of his
constitutional right to due process. Abele fails to challenge on appeal the dismissal
without prejudice of his claims based on state law, and we decline to address the
issue of “obligation of contract” that Abele raises in his reply brief because he
failed to raise it in Count II of his Second Amended Complaint and in his Initial
Brief. See Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995); Allstate Ins.
Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994). We first discuss whether
Abele stated a claim under the RICO Act, and then address the issue of due process
of law.
A. Abele Failed to State a Claim Under the RICO Act.
We have explained that a civil claim under the RICO Act requires proof of
four elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.” Langford v. Rite Aid of Alabama, Inc., 231 F.3d 1308,
1311 (11th Cir. 2000). “[A] pattern of racketeering activity . . . [is] defined as two
‘predicate acts’ of racketeering activity within a 10 year period. The phrase
5
‘racketeering activity’ is defined as including any act which is indictable under a
lengthy list of criminal offenses . . . .” Id. at 1311-12 (internal citation omitted);
see 18 U.S.C. § 1961(5).
Abele failed to state a claim under the RICO Act because he failed to allege
the defendants committed predicate acts that would constitute a pattern of
racketeering activity under section 1961(1). See 18 U.S.C. § 1961(1), (5). Abele
alleged the defendants “wantonly and maliciously destroyed” several of his
properties over a 12-year period and wrongly removed a water meter from a
mobile home he owned, but these actions are not included as predicate acts in
section 1961(1). The district court correctly dismissed the claim Abele brought
under the RICO Act.
B. Abele Stated a Claim of Denial of Due Process.
We previously concluded that Abele’s original complaint raised the federal
questions “whether the defendants violated Abele’s constitutional right to due
process of law . . . [and] the Takings Clause of the Fifth and Fourteenth
Amendments to the Constitution.” Abele, No. 04-14885. The Second Amended
Complaint did not allege a taking, but, construed liberally, the complaint raised a
federal question of due process when it alleged that Aliff entered Abele’s property
“and without any legal notice as required by Federal and State Statutes and the
6
relevant Case Law(s), he commenced to demolish the res.” Abele also alleged he
was denied the “bare essentials of law” as guaranteed “under State and Federal
Constitution(s).” Although it was undeniably difficult to unravel Abele’s
complaint, the district court erroneously ignored this federal question.
“The Due Process Clause of the Fourteenth Amendment requires that a
private citizen be given notice and an opportunity to be heard before a government
official seizes his or her property.” Quik Cash Pawn & Jewelry, Inc. v. Sheriff of
Broward County, 279 F.3d 1316, 1322 (11th Cir. 2002). Count I of Abele’s
complaint, construed liberally, states a claim that the defendants destroyed one or
more of Abele’s properties or homes without notice or a hearing—i.e., that the
defendants violated Abele’s right to procedural due process. The motion to
dismiss this claim should have been denied.
IV. CONCLUSION
We affirm the dismissal with prejudice of Abele’s claim under the RICO
Act. Because we conclude Abele stated a claim that the defendants violated his
right to due process, we reverse the dismissal of that claim and remand for further
proceedings.
AFFIRMED in part and REVERSED and REMANDED in part.
7