Dwight Smith v. Lifeline Animal Project, Inc.

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10815

Non-Argument Calendar

____________________

DWIGHT SMITH,

CATHERINE SMITH,

BRYANT SMITH,

Plaintiffs-Appellants,

versus

CITY OF JOHNS CREEK, A MUNICIPALITY IN THE STATE OF

GEORGIA, et al.,

Defendants,

LIFELINE ANIMAL PROJECT, INC.,

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Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:22-cv-02325-SEG

____________________

Before NEWSOM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Plaintiffs Dwight Smith, Catherine Smith, and Bryant

Smith—all proceeding pro se—sued Lifeline Animal Project, Inc.

(“Lifeline”), alleging that the company was negligent and violated

the Smiths’ Fourth Amendment rights when one of its employees

unlawfully entered their property. The district court dismissed the

Smiths’ second amended complaint under Federal Rule of Civil

Procedure 12(b)(6) and denied leave to amend as futile. The Smiths

now appeal.

After careful review, we conclude that the district court did

not err in dismissing the complaint and denying leave to amend.

Accordingly, we affirm.

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I. Background

A. Factual Background1

Defendant Lifeline Animal Project, Inc. is a Georgia

corporation that, at least as of mid-2020, was under contract with

Fulton County to provide animal control services. In June 2020, an

unspecified Lifeline employee went to the joint residence of

Plaintiffs Dwight, Catherine, and Bryant Smith in Johns Creek,

Georgia, to “investigate” an alleged dog bite reported five days

earlier. Before having any contact with the plaintiffs, the Lifeline

employee called 911 to report being “threatened.” A Johns Creek

police officer responded to the call.

Without a warrant, the Lifeline employee and the officer

entered the property, passed “through a gated entrance on the

deck[,] and knocked on the back door.” According to the

complaint, there was a “no trespass” sign posted on the plaintiffs’

front porch, and “[t]he area” that the Lifeline employee and the

officer walked through was “not visible to the public and

considered the private curtilage.” None of the plaintiffs consented

to the entry onto their property.

1 Because this case reaches us at the motion-to-dismiss stage, we draw all facts

from the plaintiffs’ operative complaint—here, their second amended

complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “We accept factual

allegations in the complaint as true and construe them in the light most

favorable to the plaintiff[s].” Tims v. LGE Cmty. Credit Union, 935 F.3d 1228,

1236 (11th Cir. 2019). The facts recounted here are thus based solely on what

the plaintiffs alleged in their complaint.

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Plaintiff Catherine Smith answered the door, after which the

Lifeline employee and the officer “interrogated [her] aggressively.”

At some point, Catherine “called 911 and reported the incident.”

She also asked the Lifeline employee and the officer if they had a

warrant. After they responded that they did not, Catherine asked

them to “vacate the property.” The Lifeline employee and the

officer “refused” to do so until a police supervisor told them to

leave. 2

B. Procedural History

About two years after the incident involving Lifeline, the

plaintiffs filed a 26-count complaint in the district court. They

asserted various claims against multiple defendants including the

City of Johns Creek, the City of Johns Creek Police Department,

individual Johns Creek police officers, and Fulton County. The

plaintiffs did not name Lifeline as a defendant, though they did

identify and name as defendants several “Fulton County” “animal

control officer[s].”

Soon after, the plaintiffs amended their complaint, and the

defendants moved to dismiss. The district court granted the

motions to dismiss on the grounds that the first amended

complaint was an impermissible shotgun pleading and that some

2 Following this encounter, the plaintiffs continued to have run-ins with their

neighbors and other Johns Creek police officers. We do not recount the facts

of those incidents because they have nothing to do with Lifeline. As explained

more later, Lifeline is the only remaining defendant here, and this appeal

concerns only the facts laid out above.

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individual defendants were not properly served. Notable here, the

district court found that the “Animal Control Defendants” named

in the complaint—including the person that allegedly entered the

plaintiffs’ property—were the ones not properly served. In

response, the plaintiffs asked to “remove the name[s] of the

individual [Animal Control Defendants] and replace them with

Lifeline Animal Project, Inc., the corporate entity.” The district

court granted the plaintiffs’ request, giving them leave to file a

second amended complaint and replace the individual defendants

with Lifeline.

The plaintiffs then filed their second amended complaint,

the operative complaint for this appeal. That complaint removed

several defendants, leaving only the City of Johns Creek, several

individual Johns Creek police officers, and Lifeline. The plaintiffs

alleged one 42 U.S.C. § 1983 claim for a violation of Fourth

Amendment rights and one claim of negligence under Georgia law

against Lifeline. The claims against the other defendants included

a § 1983 claim for violations of due process and equal protection

and a § 1983 claim for a Fourth Amendment violation.

Once again, the defendants—including Lifeline—moved to

dismiss. But before the district court could rule on the pending

motions, the plaintiffs noticed their voluntary dismissal of all claims

against all the defendants except Lifeline under Federal Rule of

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Civil Procedure 41(a)(1)(A)(i). 3 The notice of dismissal left only

Lifeline as a defendant.

After briefing, the district court ruled on Lifeline’s pending

motion to dismiss and concluded that the plaintiffs had failed to

state a claim for the alleged Fourth Amendment violation based on

the unnamed Lifeline employee’s entrance onto the plaintiffs’

property. 4 The district court first held that the plaintiffs failed to

adequately plead that Lifeline was a state actor, which is required

for § 1983 liability. The court then explained that even if Lifeline

were a state actor, the plaintiffs had failed to adequately plead that

Lifeline—rather than Lifeline’s employee—violated their Fourth

Amendment rights. The district court thus dismissed the plaintiffs’

§ 1983 claim. It also dismissed the remaining Georgia negligence

3 Rule 41(a)(1)(A)(i) allows a plaintiff to dismiss “an action” without a court

order by filing “a notice of dismissal before the opposing party serves either an

answer or a motion for summary judgment.” We have held that the rule

allows a plaintiff to dismiss “all the claims against one party,” City of Jacksonville

v. Jacksonville Hosp. Holdings, L.P., 82 F.4th 1031, 1037 (11th Cir. 2023)

(quotation omitted), which is what the plaintiffs did here with respect to all

defendants except Lifeline.

4 In ruling on the motion to dismiss, the district court did not consider multiple

exhibits attached to the plaintiffs’ response to the motion. The exhibits

included a document “purporting to be a contract between Lifeline and Fulton

County, various addenda to the contract, a ‘Fulton County Animal Services

Bite Report,’ and a victim statement concerning an alleged animal bite.” The

district court held that it was restricted to the four corners of the plaintiffs’

complaint and that the new exhibits submitted with the plaintiffs’ response to

the motion to dismiss improperly sought to amend the complaint to add

factual allegations.

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claim under 28 U.S.C. § 1367(c)(3) 5 and denied leave to amend the

complaint as futile. As to futility, the court explained that even the

plaintiffs’ “proposed amendment” failed to “state facts sufficient to

show that Lifeline had a custom or policy” that led to the alleged

Fourth Amendment violation.

The plaintiffs timely appealed.

II. Standard of Review

“We review de novo a district court’s grant of a motion to

dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6).” Tims, 935 F.3d at 1236. “We accept factual

allegations in the complaint as true and construe them in the light

most favorable to the plaintiff[s].” Id. Further, “we ordinarily

review district court orders denying leave to amend a complaint

for abuse of discretion,” but when “the denial is based on a legal

determination that amendment would be futile,” our review is de

novo. Taveras v. Bank of Am., N.A., 89 F.4th 1279, 1285 (11th Cir.

2024) (citation and quotation omitted).

Although we liberally construe pro se pleadings, we will not

“serve as de facto counsel for a party” or “rewrite an otherwise

deficient pleading in order to sustain an action.” Campbell v. Air

Jam., Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (quotation

omitted). Pro se plaintiffs must still provide “at least some factual

5 Once a district court has “dismissed all claims over which it has original

jurisdiction,” it “may decline to exercise supplemental jurisdiction” over any

remaining claims. 28 U.S.C. § 1367(c)(3).

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support for a claim.” Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107

(11th Cir. 2015).

III. Discussion

The plaintiffs press several arguments on appeal. First, they

argue that the district court erred in holding that Lifeline—through

its employee—was not acting under color of law when the

employee entered the plaintiffs’ property. To make this argument,

the plaintiffs rely heavily on the documents the district court

disregarded below—including the terms of the purported animal

control services contract between Fulton County and Lifeline.

Second, the plaintiffs contend (in their reply brief) that the district

court erred in holding that they were required—and failed—to

plead a policy or custom that caused the alleged Fourth

Amendment violation. And third, the plaintiffs argue (again, in

their reply brief) that the district court should have given them

leave to amend their complaint a third time.

We first address the dismissal of the complaint. We then

turn to the denial of leave to amend. Because we conclude that the

district court did not err in either respect, we affirm.

A. The district court properly dismissed the second amended

complaint for failure to state a claim 6

To survive a Rule 12(b)(6) motion to dismiss, the complaint

must include “enough facts to state a claim to relief that is plausible

6 The plaintiffs argue only that the district court erred with respect to their

§ 1983 claim. Because they do not challenge the district court’s dismissal of

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on its face.” Tims, 935 F.3d at 1236 (quotation omitted). “A claim

has facial plausibility when the plaintiff[s] plead[] factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (quotation

omitted).

To state a claim under § 1983, a plaintiff must plead “that the

conduct complained of (1) was committed by a person acting under

color of state law and (2) deprived the complainant of rights,

privileges or immunities secured by the Constitution or laws of the

United States.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.

1992). A governmental entity “cannot be held liable solely because

it employs a tortfeasor.” Monell v. Dep’t of Soc. Servs. of the City of

N.Y., 436 U.S. 658, 691 (1978). Instead, it is only when “execution

of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury that the government as

an entity is responsible under § 1983.” Id. at 694.

We assume without deciding that the plaintiffs have

adequately pleaded that the Lifeline employee’s investigation of

the dog bite was state action. In other words, we assume—as the

plaintiffs argue—that the Lifeline employee “worked

with . . . Fulton County [personnel] to administer” animal control

their negligence claim, the negligence claim is abandoned. See Marek v.

Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995) (“Issues not clearly raised in

the briefs are considered abandoned.”).

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services. 7 We also assume without deciding that the Lifeline

employee indeed violated the plaintiffs’ Fourth Amendment rights.

Given these assumptions, the question becomes whether the

plaintiffs have adequately pleaded that Lifeline—as opposed to its

employee—violated the plaintiffs’ rights. See Monell, 436 U.S. at

694. We hold that they have not.

Under Monell, “[a] county is liable under section 1983 only

for acts for which the county is actually responsible.” Grech v.

Clayton Cnty., 335 F.3d 1326, 1329 (11th Cir. 2003) (alteration

adopted). There are “three ways” that a plaintiff can establish a

county’s liability under Monell: “(1) identifying an official policy; (2)

identifying an unofficial custom or widespread practice that is so

permanent and well settled as to constitute a custom and usage

with the force of law; or (3) identifying a municipal official with

final policymaking authority whose decision violated the plaintiff's

constitutional rights.” Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade

Cnty., 48 F.4th 1222, 1229 (11th Cir. 2022). The identified policy or

custom must be the “moving force behind the deprivation of a

constitutional right.” Id. at 1235 (quotation omitted).

7 Lifeline argues that the plaintiffs improperly rely on the purported contract

between Fulton County and Lifeline to establish state action. According to

Lifeline, the plaintiffs “improperly attempted to amend the operative

complaint” by submitting the contract as an exhibit to their response to

Lifeline’s motion to dismiss. Because we assume without deciding that the

Lifeline employee’s actions were state action, we do not reach whether the

plaintiffs’ reliance on the contract to establish state action is improper.

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Importantly here, “[t]he Monell rationale applies to private

entities acting in the place of [counties].” Buckner v. Toro, 116 F.3d

450, 452 (11th Cir. 1997); accord Craig v. Floyd Cnty., 643 F.3d 1306,

1310 (11th Cir. 2011). In other words, where a private entity

contracts with a county to perform what would otherwise be state

action, and the plaintiff sues the private entity under § 1983, the

plaintiff must prove that that entity—not just the entity’s

employee—violated the plaintiff’s rights. See Buckner, 116 F.3d at

452. After all, in such cases, the private entity “becomes the

functional equivalent of” the county. Id.

The plaintiffs here alleged that a Lifeline employee—in

pursuit of animal control—violated their Fourth Amendment

rights. But rather than suing the employee, the plaintiffs sued

Lifeline itself. Because, as the plaintiffs argue, Lifeline took the

place of Fulton County for purposes of animal control,8 the

plaintiffs had to satisfy the Monell standard. See id. That is, they had

to identify a Lifeline policy or custom that was the “moving force”

behind the Lifeline employee’s allegedly unlawful intrusion on

their property. Chabad Chayil, Inc., 48 F.4th at 1229, 1235. Here,

they failed to do so.

To begin, as the district court found, the second amended

complaint nowhere alleged that Lifeline had an “official policy”

permitting its employee to intrude unlawfully onto the plaintiffs’

property. Id. at 1229; Grech, 335 F.3d at 1330. Indeed, the only time

8 Again, we assume without deciding that Lifeline’s role in providing animal

control services for the county rendered it a state actor.

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the complaint mentioned any “policies” was when it made a

conclusory statement that some subset of violations complained of

were the result of the City of Johns Creek’s policies—not Lifeline’s.

Next, the plaintiffs’ complaint did not identify any

“unofficial custom or widespread practice that is so permanent and

well settled as to constitute a custom and usage with the force of

law.” Chabad Chayil, Inc., 48 F.4th at 1229. To be sure, the plaintiffs

did allege that on a single occasion, a Lifeline employee violated

their Fourth Amendment rights by unlawfully entering their

property. But absent something more, “a single incident of

unconstitutional activity is not sufficient to impose liability under

Monell.” City of Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985)

(plurality opinion); accord Craig, 643 F.3d at 1310–11.

And lastly, the second amended complaint did not identify

“a [Lifeline] official with final policymaking authority whose

decision violated the plaintiff's constitutional rights.” Chabad

Chayil, Inc., 48 F.4th at 1229. All the complaint alleged was that

someone from Lifeline entered the plaintiffs’ property. The

complaint alleged no facts showing that that person “ha[d] final

policymaking authority” of any kind. Id.

Because the second amended complaint failed to allege that

a Lifeline policy, custom, or final policymaker was the “moving

force” behind the alleged constitutional violation, the district court

did not err in granting Lifeline’s motion to dismiss the § 1983

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claim.9 See id. at 1235. Having decided that the dismissal was not

error, we now turn to whether the district court should have

granted the plaintiffs leave to amend.

B. The district court did not err in denying leave to amend

The plaintiffs generally argue that the district court should

have allowed them to amend their complaint a third time. We

disagree.

Parties can amend their pleadings more than once only

“with the opposing party’s written consent or the court’s leave.”

Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when

justice so requires.” Id. Generally, pro se plaintiffs “must be given

at least one chance to amend the complaint” before dismissal with

prejudice. Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132

(11th Cir. 2019) (quotation omitted). But leave to amend is not

required “if a more carefully drafted complaint could not state a

claim”—i.e., if amendment would be futile. Id. at 1133. “Leave to

amend a complaint is futile when the complaint as amended would

still be properly dismissed.” Id. (quoting Cockrell v. Sparks, 510 F.3d

1307, 1310 (11th Cir. 2007)).

The district court found that further amendment would be

futile because the plaintiffs’ motion for leave to amend failed to

9 For the reasons discussed below, the documents that the plaintiffs attached

to their response to Lifeline’s motion to dismiss would not change our

conclusion.

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allege facts showing that a Lifeline policy or custom led to the

alleged Fourth Amendment violation. We agree.

The plaintiffs’ motion for leave to amend stated that the

plaintiffs would (1) remove from the complaint the defendants

already dismissed from the case and (2) plead facts to show that

“Lifeline was delegated police power granted by Fulton

County . . . to enforce the County’s animal control ordinance.” In

particular, the plaintiffs quoted language from the purported

contract between Fulton County and Lifeline that stated that

Lifeline would enforce Fulton County’s animal control ordinances.

The plaintiffs then argued that the contract showed that Lifeline

was a state actor by virtue of exercising powers “delegated” to it by

Fulton County.

Though the proposed additional allegations may have

helped the plaintiffs’ state-action arguments, they would not affect

the conclusion that the plaintiffs failed to plead that a Lifeline policy

or custom was the “moving force” behind the alleged

constitutional violation. Chabad Chayil, Inc., 48 F.4th at 1229; see

also Buckner, 116 F.3d at 452 (holding that “[t]he Monell rationale

applies to private entities acting in the place of [counties]”). In

other words, as the district court held, “even if [the plaintiffs] could

sufficiently allege that Lifeline is a state actor, their proposed

amendment would still be futile” because adequate allegations of

Monell liability would still be lacking. And because further

amendment would be futile, the district court properly denied

leave to amend. Silberman, 927 F.3d at 1133.

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IV. Conclusion

For these reasons, we affirm both the district court’s

dismissal of the complaint and its denial of leave to amend.

AFFIRMED.