Brian Terry v. Jamila McGee

USCA11 Case: 25-12825 Document: 22-1 Date Filed: 05/07/2026 Page: 1 of 11

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 25-12825

Non-Argument Calendar

____________________

BRIAN TERRY,

GALINA ROOFENER,

Plaintiffs-Appellants,

versus

JAMILA MCGEE,

Code Enforcement Division,

JOHN S. TURNER,

THE CITY OF VERO BEACH, FLORIDA,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:24-cv-14403-DMM

____________________

Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges.

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2 Opinion of the Court 25-12825

PER CURIAM:

Brian Terry and Galina Roofener, proceeding pro se, appeal

from the district court’s order dismissing their claims against Jamila

McGee, John Turner, and the City of Vero Beach, Florida. In the

complaint, the plaintiffs sued pursuant to 42 U.S.C. §§ 1981, 1983,

1985, and 1986, bringing a variety of constitutional, fraud and

breach of contract claims arising out of a municipal code enforce-

ment dispute. Among other things, they alleged that McGee, a mu-

nicipal code officer employed by the City of Vero Beach “submit-

ted false affidavits” and “misapplied a municipal code to harass and

intimidate Plaintiffs.” They further alleged that Turner, the City

Attorney, allegedly “breached his fiduciary and professional duty

by failing to prevent or correct Defendant McGee’s unconstitu-

tional actions.” On appeal, the plaintiffs argue that: (1) the district

court erred in finding that their amended complaint was a shotgun

pleading that failed to state a claim for relief; and (2) the district

court abused its discretion in not granting them further leave to

amend their complaint and by not considering exhibits they had

attached to prior pleadings. After careful review, we affirm.

We review the grant of a motion to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6) de

novo. Caterpillar Fin. Servs. Corp. v. Venequip Mach. Sales Corp., 147

F.4th 1341, 1346 (11th Cir. 2025). We review for abuse of discretion

the dismissal of a complaint as an impermissible shotgun pleading.

Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).

We review a district court’s decision whether to grant further leave

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25-12825 Opinion of the Court 3

to amend a complaint for abuse of discretion but review de novo

the district court’s decision that granting leave to amend would be

futile. Pinnacle Advert. & Mktg. Grp., Inc. v. Pinnacle Advert. & Mktg.

Grp., LLC, 7 F.4th 989, 999 (11th Cir. 2021) (granting leave to

amend); L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1328 (11th

Cir. 2020) (reviewing whether granting leave to amend was futile

de novo). A court abuses its discretion if it applies an incorrect legal

standard, follows improper procedures, or makes clearly erroneous

findings of fact. Peer v. Lewis, 606 F.3d 1306, 1311 (11th Cir. 2010).

We hold pro se pleadings to a less stringent standard than

counseled pleadings and liberally construe them. Jacob v. Mentor

Worldwide, LLC, 40 F.4th 1329, 1334 (11th Cir. 2022). But both

counseled and pro se litigants must conform to procedural rules.

Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). Thus, “a pro

se pleading must still suggest that there is at least some factual sup-

port for a claim,” Waldman v. Conway, 871 F.3d 1283, 1289 (11th

Cir. 2017) (citation modified), and “we cannot act as de facto coun-

sel or rewrite an otherwise deficient pleading to sustain an action,”

Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir. 2020). “To obtain

reversal of a district court judgment that is based on multiple, in-

dependent grounds, an appellant must convince us that every

stated ground for the judgment against him is incorrect.” Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). We

may affirm on any ground supported by the record. Cisneros v. Pet-

land, Inc., 972 F.3d 1204, 1210 (11th Cir. 2020).

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4 Opinion of the Court 25-12825

A district court has inherent authority to control its docket

and, in some cases, may dismiss pleadings that fail to conform with

the Federal Rules of Civil Procedure. Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). A district court

may dismiss a complaint solely because it is a shotgun pleading. Id.

Shotgun pleadings include complaints that: (1) contain multiple

counts where each count adopts the allegations of all preceding

counts; (2) are “replete with conclusory, vague, and immaterial

facts not obviously connected to any particular cause of action”;

(3) do not separate each cause of action or claim for relief into sep-

arate counts; or (4) bring “multiple claims against multiple defend-

ants without specifying” which defendant is responsible for which

acts or omissions. Weiland, 792 F.3d at 1321–23. Shotgun pleadings

fail to give defendants adequate notice of the claims against them

or the grounds on which each claim rests. Id.

We use a two-step process to decide whether claims survive

Rule 12(b)(6), first determining the pleading requirements for the

cause of action, and second, considering whether the complaint’s

well-pled allegations “plausibly suggest an entitlement to relief.”

Caterpillar, 147 F.4th at 1347 (citation modified). The complaint

must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In so doing,

it must include factual allegations sufficient “to raise a right to relief

above the speculative level,” that is, “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007). “Threadbare recitals of the elements of a

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25-12825 Opinion of the Court 5

cause of action, supported by mere conclusory statements” are in-

sufficient to state a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation modified). So, drawing on “judicial experience

and common sense,” we’ll deem a claim to be facially plausible if

the complaint “pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the miscon-

duct alleged.” Caterpillar, 147 F.4th at 1347 (citation modified).

Plausible facts “raise a reasonable expectation that discovery could

supply additional proof of [a defendant’s] liability.” Chaparro v. Car-

nival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012).

Courts must accept the allegations in the complaint as true

and construe those allegations “in the light most favorable to the

plaintiff.” Caterpillar, 147 F.4th at 1346 (citation modified). Yet we

are “not bound to accept as true a legal conclusion couched as a

factual allegation.” Iqbal, 556 U.S. at 678 (citation modified).

Generally, before a district court dismisses a complaint with

prejudice, a pro se plaintiff must receive at least one opportunity to

amend the complaint if he might be able to state a claim by doing

so. Woldeab v. Dekalb Cnty. Bd. of Educ., 885 F.3d 1289, 1291–92

(11th Cir. 2018); see also Silberman v. Miami Dade Transit, 927 F.3d

1123, 1132–33 (11th Cir. 2019) (noting that sometimes, further le-

niency -- or “an extra dose of grace” -- is warranted “in recognition

of the difficulty in proceeding pro se” (citation modified)). A dis-

trict court need not allow amendment in the event of undue delay,

bad faith, repeated failure to cure deficiencies, undue prejudice to

the opposing party, or futility of the amendment. Foman v. Davis,

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6 Opinion of the Court 25-12825

371 U.S. 178, 182 (1962). Leave to amend is futile if an amended

complaint “would still fail at the motion-to-dismiss or summary-

judgment stage.” Peterson, 982 F.3d at 1332. In other words, the

question is whether the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of relief. Id.

“[W]hen resolving a motion to dismiss or a motion for judg-

ment on the pleadings, a court may properly consider a document

not referred to or attached to a complaint under the incorpora-

tion-by-reference doctrine if the document is (1) central to the

plaintiff’s claims; and (2) undisputed, meaning that its authenticity

is not challenged.” Johnson v. City of Atlanta, 107 F.4th 1292, 1300

(11th Cir. 2024). A document that meets this two-prong test “need

not be physically attached to a pleading to be incorporated by ref-

erence into it.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).

An amended complaint becomes the operative pleading and super-

sedes all prior complaints, rendering them “a legal nullity.” Hoe-

fling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016).

The Fifth Amendment protects a citizen’s rights against the

federal government, not a state government. Weiland, 792 F.3d at

1328. In order to state a claim under § 1981, a plaintiff must allege

that (1) he is a racial minority, (2) the defendant intended to racially

discriminate against him, and (3) the discrimination involved one

of the activities listed in § 1981. Jimenez v. Wellstar Health Sys., 596

F.3d 1304, 1308 (11th Cir. 2010). For interference with the right to

contract, the plaintiff must identify an impaired contractual rela-

tionship under which the plaintiff has rights. Id. at 1309. To state

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25-12825 Opinion of the Court 7

a claim under § 1983, the plaintiff must allege: (1) that the defend-

ant deprived him of a right established by the Constitution or a fed-

eral law, and (2) the deprivation arose under color of state law. An-

dre v. Clayton Cnty, Ga., 148 F.4th 1282, 1291 (11th Cir. 2025).

Section 1985 covers conspiracies to interfere with civil

rights. 42 U.S.C. § 1985(3); Childree v. UAP/GA Chem., Inc., 92 F.3d

1140, 1146–47 (11th Cir. 1996). Subsection (3) of § 1985 provides a

cause of action to victims of a conspiracy to deprive any person or

class of persons of the equal protection of the laws, or of equal priv-

ileges and immunities under the laws. 42 U.S.C. § 1985(3). The

elements of a § 1985(3) cause of action are (1) a conspiracy, (2) for

the purpose of depriving equal protection or privileges and immun-

ities of the law, (3) an act in furtherance of the conspiracy, and (4)

a resulting injury to person or property or deprivation of any right

or privilege. Childree, 92 F.3d at 1146–47. Section 1986 provides a

cause of action against anyone who has “knowledge that any of the

wrongs conspired to be done, and mentioned in section 1985 of this

title, are about to be committed, and having power to prevent or

aid in preventing the commission of the same, neglects or refuses

so to do.” 42 U.S.C. § 1986. Accordingly, § 1986 claims are deriva-

tive of § 1985 violations. Park v. City of Atlanta, 120 F.3d 1157,

1159–60 (11th Cir. 1997).

A municipality cannot be held liable under § 1983 for the ac-

tions of its employees under a respondeat superior theory. Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, a municipal-

ity can only be held liable for its official policies. Id. Thus, to state

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8 Opinion of the Court 25-12825

a claim against a municipality, a plaintiff must show the existence

of an official policy or “a practice or custom that is so pervasive, as

to be the functional equivalent of a policy adopted by the final pol-

icymaker.” Khoury v. Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1131

(11th Cir. 2021) (citation modified). Further, the plaintiff must

show that the county policy or custom was the cause of the viola-

tion of his constitutional rights. Id.

In dismissing the plaintiffs’ third amended complaint, the

district court dismissed on two grounds: (1) the complaint was an

impermissible shotgun pleading; and (2) it failed to state a claim

under Rule 12(b)(6). Therefore, in order for the plaintiffs to prevail

on appeal, they must show that the district court erred on both

grounds. Sapuppo, 739 F.3d at 680. However, the district court

properly dismissed plaintiffs’ third amended complaint for failure

to state a claim upon which relief could be granted, so we affirm

the district court’s dismissal of the complaint.

For starters, all of plaintiffs’ claims under the Fifth Amend-

ment fail because it protects against violations by the federal gov-

ernment, which defendant City of Vero Beach is not and for which

neither defendant McGee nor defendant Turner are agents. See

Weiland, 792 F.3d at 1328. As for plaintiffs’ claim under § 1981, they

needed to allege intentional racial discrimination and identify a

contractual provision under which they had rights. However, the

complaint does not allege either element. Instead, it makes con-

clusory statements that the defendants violated the plaintiffs’ due

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25-12825 Opinion of the Court 9

process rights through, among other things, McGee’s “false affida-

vits,” which do not state a § 1981 claim. Iqbal, 556 U.S. at 678.

As for the § 1983 claim for a deprivation of the plaintiffs’

rights under the Fourteenth Amendment, they needed to plausibly

allege a right established by the Fourteenth Amendment of which

they had been deprived, and that the deprivation of that right hap-

pened under color of state law. Again, the plaintiffs failed to pro-

vide sufficient plausible allegations that any of their Fourteenth

Amendment rights had been violated. They merely asserted in

conclusory fashion that McGee’s “fraudulent affidavits” subjected

the plaintiffs to a deprivation “of their equal protection and due

process rights”; that Turner “breached his fiduciary and profes-

sional duty by failing to prevent or correct Defendant McGee’s un-

constitutional actions”; and that the City’s “policies, customs and

failure in training and oversight exacerbated these constitutional

violations.” Without providing any specifics about the alleged vi-

olations of their equal protection or due process rights, these alle-

gations fail to state a § 1983 claim. Iqbal, 556 U.S. at 678; Monell,

436 U.S. at 691; Khoury, 4 F.4th at 1131; Caterpillar, 147 F.4th at

1347; Andre, 148 F.4th at 1291.

As for their § 1985 conspiracy claim, the plaintiffs needed to

plausibly allege the existence of a conspiracy to deprive them of

their constitutional rights, an act furthering that conspiracy, and

the resulting injury. As for § 1986, they needed to allege that some-

one knew of the § 1985 conspiracy and did nothing to prevent it.

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10 Opinion of the Court 25-12825

Yet their complaint offers no plausible allegations to this effect. In-

stead, it puts forward only legal conclusions that defendants

McGee and Turner conspired with one another, filed false affida-

vits, defended the veracity of those false affidavits, and were able

to do so due to the City’s “institutional failures” -- again without

any specifics. On this record, the district court did not err in dis-

missing their complaint for failure to state a claim. Childree, 92 F.3d

at 1146–47; Park, 120 F.3d at 1159–60.

Nor did the district court abuse its discretion in not granting

plaintiffs leave to amend. On appeal, the plaintiffs appear to argue

that the district court denied their motion to amend their com-

plaint and its attached second amended complaint, but the record

says otherwise. In considering the plaintiffs’ proposed second

amended complaint, the district court denied leave to amend be-

cause the second amended complaint was still deficient, yet the

court still granted plaintiffs leave to amend another amended com-

plaint, constructively being their fourth complaint in the case. This

is the operative complaint on appeal, and as we’ve explained, its

allegations fail to state a claim. To the extent the plaintiffs argue

that the district court abused its discretion by not granting them

leave to amend their answers to a show cause order -- to explain

why the amended complaint should not be dismissed -- this argu-

ment misses the mark. The relevant document on appeal is the

third amended complaint, which made their show cause answers

irrelevant. Again, as we’ve noted, the district court allowed them

to amend their complaint, so it did not abuse its discretion in failing

to do so.

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25-12825 Opinion of the Court 11

Finally, the district court did not abuse its discretion by not

considering documents the plaintiffs attached to prior amended

complaints, their proposed amended answers to the district court’s

show cause order, or their response to the city employees’ third

motion to dismiss. Bryant, 967 F.3d at 1275. While they were not

required to do so, the plaintiffs did not attach any of the documents

to their third amended complaint -- the operative complaint -- nor

did they explicitly refer to any of the documents in their third

amended complaint. Hoefling, 811 F.3d at 1277. Further, the filings

were not clearly central to plaintiffs’ claims because they contained

mostly Terry’s and Roofener’s reactions and subsequent writings,

not the actual underlying alleged deprivation of their rights. John-

son, 107 F.4th at 1300.

AFFIRMED.