Alonzo Austin v. Modern Woodman of America

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 2, 2008
No. 07-13843 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00138-CV-3-MHT-TFM
ALONZO AUSTIN, Executor for
the estate of Ruth H. Lewis,
Plaintiff-Appellant,
versus
MODERN WOODMAN OF AMERICA,
ALFONZA MENEFEE, Probate Judge, in his
individual and official capacities,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 2, 2008)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Alonzo Austin, an individual proceeding pro se on behalf of his cousin’s
estate, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint
against various defendants.1 As executor of his cousin’s estate, Austin asserts that
various individuals and entities–among them, an Alabama probate court judge,
several attorneys, the state medical licensing board, and several banks–violated his
cousin’s Fourteenth Amendment rights in connection with her guardianship and
housing and, ultimately, the distribution of her property upon her death in 1994.
On appeal, Austin argues that the district court erred by not construing the
defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) as motions for summary judgment pursuant to Rule 56(e). He asserts this
error caused him harm because had the district court decided the case under the
summary judgment standard, two of the defendants, Judges Menefee and Bryan,
would have been required to “prove absolute or qualified immunity.” Austin also
finds error in the district court’s failure to consider his motion for summary
judgment; he asserts that the court should have taken his allegations as true and
that there was a disputed genuine issue of material fact at the Rule 12(b)(6) stage.
Additionally, on appeal, Austin appears to argue the merits of the underlying
probate proceedings out of which this § 1983 action arose.
1
The several motions by several appellees to adopt other appellee briefs are granted.
2
We review de novo an order granting motions to dismiss. Wagner v. First
Horizon Pharmaceutical Corp., 464 F.3d 1273, 1276-77 (11th Cir. 2006). In
reviewing a district court’s grant of a motion to dismiss, the allegations in the
complaint “must be taken as true and read in the light most favorable to the
plaintiffs.” Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992).
“A court is generally limited to reviewing what is within the four corners of
the complaint on a motion to dismiss.” Bickley v. Caremark RX, Inc., 461 F.3d
1325, 1329 n.7 (11th Cir. 2006). Under Federal Rule of Civil Procedure 12(d),
“[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed. R. Civ. P. 12(d) (2008). “Whenever a
judge considers matters outside the pleadings in a 12(b)(6) motion, that motion is
thereby converted into a Rule 56 Summary Judgment motion.” Trustmark Ins. Co.
v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002).
After careful review, we discern no reversible error. Although the parties’
motions had affidavits, the record demonstrates that the district court did not
consider matters outside the pleadings. The magistrate’s report and
recommendation, which was adopted by the district court, only considered the
“face of Austin’s complaint” when issuing its recommendation. The district court
3
therefore did not err when it failed to treat the defendants’ motions to dismiss as
motions for summary judgment. See Bickley, 461 F.3d at 1329 n.7;
Trustmark Ins. Co., 299 F.3d at 1267. Because this is the only issue raised on
appeal,2 and Austin has abandoned all other issues, the district court’s order
dismissing Austin’s claims against the defendants is
AFFIRMED.3
2
We observe that the district court dismissed Appellant’s complaint on grounds of, inter
alia, absolute judicial immunity, state sovereign immunity, and for want of a state actor.
Appellant has not challenged the substance of this ruling. Issues not raised on appeal are
deemed waived. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.
1989). Even were we able to construe Appellant’s brief to present such a challenge, we find no
reversible error.
3
Two of the defendants, Regions Bank and Wachovia Bank, move this Court for
sanctions pursuant to Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1912. The motion
is denied. There is no indication in the record that Appellant’s inartful complaint (and appeal)
was made for purposes of harassment or delay. Nor is there any indication that Appellant has
been litigious, or has filed multiple frivolous actions.
4