Miller v. Conway

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15, 2011
No. 10-15618 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:08-cv-02271-TWT
AVERY LAMAR MILLER,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
R.L. CONWAY,
Sheriff,
FERGURSON,
Lieutenant Deputy,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,
E. MCKENZIE,
Deputy, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 15, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
This appeal is the second occasion that we have reviewed the dismissal of
the complaint of Avery Lamar Miller that officials of the Sheriff’s Department of
Gwinnett County violated his civil rights. 42 U.S.C. § 1983. In the first appeal,
this Court vacated an order denying Miller’s request to amend his complaint to
include additional defendants and reversed the dismissal of Miller’s claim about a
“no talking” rule, but we affirmed the dismissal of Miller’s claim about retaliation
and “the remainder of Miller’s complaint.” Miller v. Conway, No. 08-16513 (11th
Cir. June 3, 2009). On remand, the district court allowed Miller to amend his
complaint to add claims against District Attorney Daniel Porter and Deputy
Captain Alan Craig, but the district court dismissed those claims for failure to state
a claim. The district court also granted summary judgment against Miller’s claim
that Deputy Sheriff R.L. Conway and FNU Fergurson had been liable as
supervisors for the “no talking” rule imposed by a third officer. To determine the
status of his claim of retaliation against Deputy Sheriff J. Land, Miller filed a
motion for clarification. The district court explained that it had “dismissed
[Miller’s] retaliation claim against Land” and, because “the Eleventh Circuit [had]
affirmed the dismissal of [the] complaint on all claims except the no-talking rule
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claim,” Miller’s “retaliation claim against Land was, and remains, dismissed.”
Miller now appeals the dismissal of his claims against Land and Craig. We affirm.
We read Miller’s brief to challenge two rulings of the district court, but both
of his arguments fail. First, Miller erroneously argues that the district court
misinterpreted our previous decision. This Court affirmed the dismissal of
Miller’s claims about retaliation by Land, Miller, No. 08-16513, slip op. at 2–3,
and under the law of the case doctrine, Miller is barred from relitigating our
holding unless “‘(1) a subsequent trial . . . produce[d] substantially different
evidence, (2) controlling authority has since made a contrary decision of law
applicable to [his claim], or (3) the prior decision was clearly erroneous and would
work manifest injustice.’” Joshi v. Fla. State Univ. Health Ctr., 763 F.2d 1227,
1231 (11th Cir. 1985) (quoting Wheeler v. City of Pleasant Grove, 746 F.2d 1437,
1440 (11th Cir. 1984)). Miller does not argue that any of these exceptions apply.
Second, Miller challenges the dismissal of his claim that Craig offered and then
failed to advise Miller about the investigation of Land’s alleged retaliation, but
Miller failed to “allege a specific federal right violated by” Craig. Doe v. Sch. Bd.
of Broward Cnty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010). Miller also argues,
for the first time on appeal, that Craig is subject to supervisory liability for
deliberately disregarding Land’s alleged retaliation, but we will not consider a
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theory of liability never presented to the district court. See Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
The dismissal of Miller’s complaint is AFFIRMED.
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