# Raiza Rojas v. Kathy Hendrix

> Court of Appeals for the Eleventh Circuit · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10593706

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** September 30, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10593706

## How later opinions describe it (automated extraction)

- 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

## Opinion text

USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 1 of 9

[DO NOT PUBLISH]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
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 2 of 9

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
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 3 of 9

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.
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 4 of 9

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
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 5 of 9

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
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 6 of 9

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
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 7 of 9

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).
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 8 of 9

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.
USCA11 Case: 24-10747 Document: 36-1 Date Filed: 09/30/2024 Page: 9 of 9

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10593706. Public record. Not legal advice.