Raiza Rojas v. Kathy Hendrix

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10747

Non-Argument Calendar

____________________

RAIZA ROJAS,

Plaintiff-Appellant,

versus

KATHY HENDRIX,

As Evans County Georgia,

Superior Clerk of Court in Her Individual Capacity,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 6:23-cv-00045-JRH-BKE

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2 Opinion of the Court 24-10747

____________________

Before WILSON, LUCK, and TJOFLAT, Circuit Judges.

PER CURIAM:

Raiza Rojas, proceeding pro se, appeals from the District

Court’s dismissal of her 42 U.S.C. § 1983 complaint against Kathy

Hendrix, the Clerk of the Superior Court of Evans County, Geor-

gia, in her personal capacity. The District Court dismissed Rojas’s

complaint on the basis of qualified immunity, finding that Rojas did

not show that she had a clearly established right to an evidentiary

hearing on her state petition for a writ of habeas corpus. After

careful review, we affirm the District Court’s determination.

I. Background

Rojas’s § 1983 complaint arises out of an underlying criminal

conviction in Georgia. A routine traffic stop on the car Rojas was

driving became tumultuous after the officer conducting the stop

smelled marijuana and asked Rojas to exit her vehicle. A jury ulti-

mately convicted her of obstruction of an officer, driving on a sus-

pended registration, and driving without proof of insurance.

While serving her sentence of one-hundred-eighty days of

confinement, Rojas filed a petition for a writ of habeas corpus with

the Evans County Superior Court. See O.C.G.A. 9-14-42 (providing

that a prisoner may institute a habeas proceeding where there was

a substantial denial of constitutional or state rights). She forwarded

multiple requests to schedule an evidentiary hearing on her

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24-10747 Opinion of the Court 3

petition, but that hearing never occurred before Rojas completed

her sentence.

Rojas consequently filed a § 1983 action in the Southern Dis-

trict of Georgia against Hendrix in her personal capacity. She

claimed that Hendrix failed to set an evidentiary hearing and

thereby frustrated her petition for a writ of habeas corpus in viola-

tion of Rojas’s “federal right of due process.”1 That is, Rojas as-

serted she has a right to an evidentiary hearing on her state habeas

petition under the Fifth and Fourteenth Amendments, and that

Hendrix’s violation of this supposed right deprived Rojas of due

process. Hendrix moved to dismiss the suit, and the District Court

found that Rojas’s claim is barred by qualified immunity because

she did not show that the right at issue was clearly established at

1 The record is muddled concerning the exact federal right which Rojas seeks

to vindicate through her § 1983 action. Section 1983 requires a plaintiff to

allege the “deprivation of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983 (emphasis added); see also Blessing v.

Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359 (1997). Rojas’s complaint

points to Hendrix’s “failure to act” as a deprivation of a federal right, and

obliquely refers to this right as her “federal right of due process, per a [w]rit of

[h]abeas [c]orpus.” In her brief, Rojas also points to Hendrix’s “failure to act

upon [Rojas’s] [w]rit of [h]abeas [c]orpus [p]etition” as depriving Rojas “of a

constitution[al] federal right, and a clearly established right separately codified

and endorsed per . . . Georgia case law and statute.”

Construing Rojas’s pro se complaint liberally, see Powell v. Lennon, 915 F.2d

1459, 1463 (11th Cir. 1990), we follow the District Court’s understanding that

Rojas alleges that she has a right to an evidentiary hearing on her state habeas

petition secured by her Fifth and Fourteenth Amendment rights to due pro-

cess.

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4 Opinion of the Court 24-10747

the time of Hendrix’s purportedly violative conduct. Rojas timely

appealed the District Court’s order granting Hendrix’s motion to

dismiss.

II. Standard of Review

The defense of qualified immunity may be raised and con-

sidered on a motion to dismiss. St. George v. Pinellas Cnty., 285 F.3d

1334, 1337 (11th Cir. 2002) (citing Chesser v. Sparks, 248 F.3d 1117,

1121 (11th Cir. 2001)). We review de novo the District Court’s deci-

sion to grant or deny the defense of qualified immunity on a mo-

tion to dismiss, accepting the factual allegations in the complaint as

true and drawing all reasonable inferences in the plaintiff’s favor.

Wilson v. Sec’y, Dep’t of Corr., 54 F.4th 652, 659–60 (11th Cir. 2022).

“In the case of a pro se action, moreover, the court should

construe the complaint more liberally than it would formal plead-

ings drafted by lawyers.” Powell v. Lennon, 914 F.2d 1459, 1463 (11th

Cir. 1990) (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 175

(1980) (per curiam)). However, an issue is abandoned when a party

seeking to raise it on appeal fails to do so “plainly and prominently.”

Sapuppo v. Allstate Floridians Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014) (internal quotation marks omitted). This standard applies to

pro se litigants. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008).

III. Discussion

Lawsuits against public officials in their personal capacity

impose costs not only on defendant officials but also on society as

a whole, including the expenses of litigation, the diversion of

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24-10747 Opinion of the Court 5

official energy from pressing public issues, the deterrence of able

citizens from accepting public office, and the dampening of offi-

cials’ ardor in performing their duties. Harlow v. Fitzgerald, 457 U.S.

800, 814, 102 S. Ct. 2727, 2736 (1982). The defense of qualified im-

munity “is the public servant’s (and society’s) strong shield against

these dangerous costs.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir.

1996). It protects government officials performing discretionary

functions from civil litigation and liability if their conduct does not

violate clearly established constitutional or statutory rights of

which a reasonable person would have known. Id. (citing Harlow,

457 U.S. at 817–19, 192 S. Ct. at 2738).

To assert a qualified immunity defense, the government of-

ficial “must first prove that [she] was acting within [her] discretion-

ary authority” when she performed the acts of which the plaintiff

complains. Bowen v. Warden, Baldwin State Prison, 826 F.3d 1312,

1319 (11th Cir. 2016) (internal quotation marks omitted). But Rojas

concedes in her complaint that Hendrix acted within the scope of

her discretionary authority in relation to Rojas’s claims. This satis-

fies Hendrix’s threshold burden.

The burden then shifts to the plaintiff to show that the offi-

cial violated her constitutional or statutory rights, and that the

right was clearly established at the time of the official’s conduct.

Fuqua v. Turner, 996 F.3d 1140, 1149 (11th Cir. 2021) (first citing Ash-

croft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 2080 (2011); and

then citing Shaw v. City of Selman, 884 F.3d 1093, 1099 (11th Cir.

2018)). Judges may decide which of the two prongs of this analysis

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6 Opinion of the Court 24-10747

to address first in light of the circumstances in the case at hand.

Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009).

We first address whether the right to an evidentiary hearing

on a state habeas petition is clearly established. To be clearly estab-

lished, the contours of a right must be sufficiently clear such that

every reasonable officer would have understood her conduct to vi-

olate that right. Fuqua, 996 F.3d at 1150 (citing al-Kidd, 563 U.S. at

741, 131 S. Ct. at 2083). A plaintiff may show this through: “(1) case

law with indistinguishable facts clearly establishing the constitu-

tional right; (2) a broad statement of principle within the Constitu-

tion, statute, or case law that clearly establishes a constitutional

right; or (3) conduct so egregious that a constitutional right was

clearly violated, even in the total absence of case law.” Lewis v. City

of W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009) (citations

omitted). The law must not be defined at a high level of generality,

but rather be particularized to the facts of the case. Fuqua, 996 F.3d

at 1150.

No law clearly establishes that a prisoner has a right to an

evidentiary hearing in state court on a petition for a writ of habeas

corpus. Certainly, Rojas points to no case law exhibiting such a

right. Nor can we locate any such authority within our Circuit or

in Georgia. Rather, we have upheld the qualified immunity of a

state clerk like Hendrix in circumstances where the complainant

sought damages from the Clerk of Court for failing to perform

routine duties. See, e.g., Williams v. Wood, 612 F.2d 982, 984–986 (5th

Cir. 1980) (per curiam) (“In entering an order and notifying the

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24-10747 Opinion of the Court 7

parties a clerk of court enjoys qualified . . . immunity.”).2 And in

the context of a postconviction appeal, the Georgia Supreme Court

has rejected a due process claim grounded in the failure to schedule

a hearing on a postconviction motion for eleven years. Glover v.

State, 728 S.E.2d 221, 224–25 (Ga. 2012). While notable distinctions

between the current case and precedents establishing the right are

permissible “so long as the prior decisions gave reasonable warning

that the conduct at issue violated constitutional rights,” Holloman

ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir. 2004) (in-

ternal quotation marks omitted), there is no identifiable precedent

that would reasonably provide Hendrix fair warning that her failure

to schedule an evidentiary hearing violated Rojas’s constitutional

rights.

Rojas instead argues, in effect, that a right to an evidentiary

hearing on a state habeas petition is clearly established because it is

an obvious constitutional right. This fails for two reasons. First,

“clearly established law should not be defined at a high level of gen-

erality.” White v. Pauly, 580 U.S. 73, 79, 137 S. Ct. 548, 552 (2017)

(internal quotation marks omitted). Otherwise, a plaintiff would

be able to virtually overcome the rule of qualified immunity by “al-

leging violation of extremely abstract rights.” Id. (internal quota-

tion marks omitted). This aims to avoid exactly the species of claim

that Rojas asserts, in which a broad general proposition (due

2 Decisions of the Fifth Circuit issued prior to October 1, 1981, are binding

precedent on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc).

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8 Opinion of the Court 24-10747

process) is alleged to provide fair notice that Hendrix’s particular-

ized conduct violated Rojas’s rights. See Coffin v. Brandau, 642 F.3d

999, 1013 (11th Cir. 2011).

Second, states are afforded wide latitude in deciding the ap-

propriate procedures for postconviction relief. Dist. Att’y’s Off. for

the Third Jud. Dist. v. Osborne, 557 U.S. 52, 69, 129 S. Ct. 2308, 2320

(2009). “‘[W]hen a State chooses to offer help to those seeking re-

lief from convictions,’ due process does not ‘dictat[e] the exact

form such assistance must assume.’” Id. (quoting Pennsylvania v.

Finley, 481 U.S. 551, 559, 107 S. Ct. 1990, 1995 (1987)) (alteration in

original). No authority suggests the federal right to due process

encompasses a clearly established constitutional right to clerical ac-

tion concerning the exact scheduling of a state habeas corpus evi-

dentiary hearing. Indeed, the fundamental fairness mandated by

due process does not even require the state to supply a lawyer to a

prisoner seeking postconviction relief via state habeas proceedings.

Finley, 481 U.S. at 557, 107 S. Ct. at 1994. This constitutional land-

scape could not provide Hendrix with the “fair notice” necessary

to establish that her conduct was violative of Rojas’s due process

rights. See Hope v. Pelzer, 536 U.S. 730, 739–41, 122 S. Ct. 2508, 2515–

16 (2002) (explaining that officers sued for damages under 42 U.S.C.

§ 1983 must have fair notice that their conduct deprived their vic-

tims of a constitutional right). We consequently cannot say that

Rojas’s invocation of due process as an obviously applicable consti-

tutional principle meets the burden necessary to overcome Hen-

drix’s qualified immunity.

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24-10747 Opinion of the Court 9

IV. Conclusion

For the foregoing reasons, the District Court did not err in

dismissing Rojas’s complaint as barred by qualified immunity. Be-

cause Rojas does not prominently and plainly raise on appeal the

District Court’s denial of leave to amend her complaint or the Dis-

trict Court’s decision to dismiss her complaint with prejudice, she

has abandoned these issues and we do not address them. See Tim-

son, 518 F.3d at 874; Sapuppo, 739 F.3d at 680. Accordingly, we af-

firm the District Court’s dismissal of Rojas’s complaint.

AFFIRMED