Danny K. Ho v. Attorney General, State of Florida

USCA11 Case: 22-11430 Document: 27-1 Date Filed: 03/13/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11430
Non-Argument Calendar
____________________
DANNY K. HO,
Plaintiff-Appellant,
versus
ATTORNEY GENERAL, STATE OF FLORIDA,
GOVERNOR OF FLORIDA,
COMMISSIONER OF THE FLORIDA DEPARTMENT OF LAW
ENFORCEMENT,
CHIEF FINANCIAL OFFICER OF FLORIDA,
FLORIDA COMMISSIONER OF AGRICULTURE, et al.,
Defendants-Appellees.
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2 Opinion of the Court 22-11430
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-02309-MSS-CPT
____________________
Before JORDAN, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
Danny Ho, proceeding pro se, appeals from the district
court’s order granting the Defendants’ 1 motion to dismiss his pro
se amended complaint raising a claim pursuant to the Equal Pro-
tection Clause of the Fourteenth Amendment. On appeal, he ar-
gues that the district court abused its discretion by dismissing his
amended complaint with prejudice. He also contends that the dis-
trict court abused its discretion by denying his motions for recusal.
For the following reasons, we affirm.
I.
On July 12, 2021, Ho filed a complaint against the Defend-
ants, purporting to raise three claims: (1) a “procedural error” at
Tampa International Airport (“TPA”); (2) a violation of the United
States District Court for the Middle District of Florida’s former
1 The Defendants in this case are the Florida Attorney General, Governor of
Florida, the Commissioner of the Florida Department of Law Enforcement,
the Chief Financial Officer of Florida, and the Florida Commissioner of Agri-
culture.
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22-11430 Opinion of the Court 3
Local Rule 1.03(b) by the clerk and a district court judge; and (3) a
failure to prosecute. From our reading of that complaint, Ho’s
claims are based on his suspension from a job at TPA due to prob-
lems with his security badge application and his Federal Bureau of
Investigation background report. The Defendants moved for a
more definite statement, arguing that Ho’s complaint was ambig-
uous and vague. Ho opposed that motion. Ho also filed a motion
labeled as one for summary judgment, as well as a motion arguing
for recusal of Judge Scriven, the district court judge assigned to his
case.
On October 28, 2021, the district court granted the Defend-
ants’ motion and dismissed Ho’s complaint without prejudice, rea-
soning that the complaint was so vague and ambiguous that the
Defendants could not reasonably prepare a response, that the basis
of jurisdiction was unpled, and that the claims were impermissibly
lumped together. The court stated that Ho had fourteen days to
file an amended complaint to cure these defects, “including, but
not limited to, removing any Defendant having no involvement in
his claimed injury and removing any judge sued for actions based
solely on his or her exercise of duties as a judicial officer.” The
district court also denied Ho’s motion for recusal in a separate or-
der.
Ho subsequently filed an amended complaint suing the
same five defendants. Ho asserted a claim pursuant to the Equal
Protection Clause of the Fourteenth Amendment for the Defend-
ants’ failure to prosecute the clerk’s violation of former Local Rule
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4 Opinion of the Court 22-11430
1.03(b). He also claimed that he was a crime victim protected by
the Crime Victims’ Right Act (“CVRA”), 18 U.S.C. § 3771. As to
the five defendants, Ho did not provide any further specific allega-
tions against them besides asserting that they had put his case on
hold by moving for a more definite statement. Ho also purported
to add additional defendants in the body amended complaint, in-
cluding Judge Scriven and two other district court judges, the clerk,
Chief Executive Officer of Tampa International Airport Joe
Lopano, and Hillsborough County Aviation Authority Chairman
Robert Watkins, and raised various grievances against them. Ho
also filed another motion for recusal against Judge Scriven.
The Defendants moved to dismiss Ho’s amended complaint
with prejudice, arguing that it was a shotgun pleading because it
contained pages of irrelevant facts, commingled the allegations
against the defendants and non-parties, and failed to separate each
cause of action into different counts. They also argued that they
were entitled to Eleventh Amendment Immunity and that Ho
failed to state a claim against them.
The district court granted the Defendants’ motion to dismiss
with prejudice. The court explained that Ho had not even tried to
comply with its prior instructions to remove from his complaint
defendants with no involvement in his claimed injury and judges
sued solely pursuant to their acts as judicial officers. The court also
noted that Ho had been designated a vexatious litigant in a different
case and warned Ho that continued submission of future frivolous
or actions may result in the imposition of monetary sanctions. The
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22-11430 Opinion of the Court 5
district court also denied Ho’s motion for summary judgment2 and
motion for recusal.
This appeal ensued.
II.
We review a district court’s dismissal of a complaint as a
shotgun pleading for abuse of discretion. Barmapov v. Amuial, 986
F.3d 1321, 1324 (11th Cir. 2021). A complaint is a shotgun pleading
if it contains pervasive conclusory, vague, and immaterial facts not
connected to a specific claim. Id. at 1324–25. A court should pro-
vide a plaintiff one opportunity to amend his shotgun complaint
before dismissing his action. See Vibe Micro, Inc. v. Shabanets, 878
F.3d 1291, 1296 (11th Cir. 2018). “In the repleading order, the dis-
trict court should explain how the offending pleading violates the
shotgun pleading rule so that the party may properly avoid future
shotgun pleadings.” Id. But if the plaintiff files an amended com-
plaint without substantially fixing the deficiencies in the original
complaint, dismissal with prejudice is warranted. Jackson v. Bank
of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).
2 Ho has abandoned any argument that the district court erred by dismissing
his motion for summary judgment. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681, 683 (11th Cir. 2014) (explaining that An issue is abandoned
if it is (1) not prominently raised on appeal, (2) raised without supporting ar-
guments and authorities, or (3) raised for the first time in a reply brief). As a
separate note, we find that his challenges related to his other district court
cases are not within the scope of this appeal and do not address them.
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6 Opinion of the Court 22-11430
Here, even construing Ho’s amended complaint liberally
given his pro se status, see Holsomback v. White, 133 F.3d 1382,
1386 (11th Cir. 1998), the district court did not abuse its discretion
by dismissing the amended complaint as a shotgun pleading. The
amended complaint contained many conclusory and vague allega-
tions, largely raised allegations about the actions of non-parties,
and failed to raise specific allegations related to the defendants. See
Barmapov, 986 F.3d at 1324–25. The district court was also within
its discretion to dismiss the amended complaint with prejudice af-
ter it gave Ho one opportunity to fix these deficiencies, which the
court explained to Ho in its order dismissing the original com-
plaint, but Ho failed to do so. See Vibe Micro, Inc., 878 F.3d at
1296; Jackson, 898 F.3d at 1358-59. And “ even in the case of pro
se litigants this leniency does not give a court license to serve as de
facto counsel for a party, or to rewrite an otherwise deficient plead-
ing in order to sustain an action.” Campbell v. Air Jamaica Ltd.,
760 F.3d 1165, 1168–69 (11th Cir. 2014) (quoting GJR Invs., Inc. v.
County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998)).
Accordingly, we affirm the district court’s dismissal of the
amended complaint.
III.
We review the denial of a motion to recuse for abuse of dis-
cretion. Loranger v. Stierheim, 10 F.3d 776, 779 (11th Cir. 1994)
(en banc). Federal law requires judges to disqualify themselves if
their impartiality might reasonably be questioned, where they have
personal knowledge of disputed evidentiary facts, or where they
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22-11430 Opinion of the Court 7
have an interest that could be substantially affected by the outcome
of the proceeding. 28 U.S.C. § 455. An allegation of bias must be
personal, rather than judicial, in nature, and generally cannot be
based on the judge’s rulings in related cases. Phillips v. Joint Legis.
Comm. on Performance & Expenditure Rev. of Miss., 637 F.2d
1014, 1020 (5th Cir. 1981) 3; accord Loranger, 10 F.3d at 780 (ex-
plaining that, for a bias to be personal, it must stem from an extra-
judicial source).
Here, the district court did not abuse its discretion by deny-
ing Ho’s motions for recusal. As an initial matter, there is no indi-
cation in the record that Ho’s motions for recusal were tampered
with, as he alleges. Additionally, as the district court concluded,
the motions did not coherently establish any grounds for recusal
under § 455. Indeed, Ho based his requests for recusal on actions
the judge had previously taken in her judicial capacity. See id. Ac-
cordingly, we affirm the denial of Ho’s motions for recusal.
IV.
For the reasons stated, we affirm the district court’s orders
dismissing Ho’s amended complaint and denying his motions for
recusal.
AFFIRMED.
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.