The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14327 ELEVENTH CIRCUIT
DEC 22, 2010
________________________
JOHN LEY
CLERK
D.C. Docket No. 09-00180-CV-OC-GRJ
J.D. NETTLES, JR.,
Plaintiff-Appellant,
versus
CITY OF LEESBURG - POLICE DEPARTMENT,
WILLIAM CHRISMAN, Chief of Police,
SCOTT MACK, Officer,
A ROMAN, Officer,
FNU HOLTZCLAW, Officer,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 22, 2010)
Before EDMONDSON, HILL and ALARCÓN,* Circuit Judges.
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
ALARCÓN, Circuit Judge:
J.D. Nettles Jr. appeals from the order of the District Court for the Middle
District of Florida dismissing with prejudice his Second Amended Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and for failure to
comply with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure. The
City of Leesburg, William Chrisman, and Scott Mack (“Appellees”) have filed a
motion for sanctions against Nettles under Rule 38 of the Federal Rules of
Appellate Procedure for filing a frivolous appeal. We affirm the dismissal of this
action because we conclude that Nettles failed to state a claim upon which relief
could be granted. We also deny the motion for sanctions filed by Appellees
because we are not persuaded that Nettles’s appeal was clearly frivolous.
I
On December 22, 2008, Nettles filed a Complaint against the Appellees in
the Fifth Judicial Circuit in and for Lake County, Florida, pursuant to 42 U.S.C.
§ 1983, the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01, et. seq., and
Fla. Stat. § 768.01 et. seq. On January 20, 2009, Appellees filed a motion to
dismiss this action pursuant to Rules 1.140 and 1.110(b) of the Florida Rules of
Civil Procedure. Appellees asserted in their motion that
2
[t]he Complaint fails to state a claim upon which relief can be granted
under any of the legal “theories” or conclusory statements of law
listed by the Plaintiff in the indecipherable Complaint. In addition to
containing nothing more than conclusory allegations, there are
insufficient allegations pled to give this Court jurisdiction over the
Defendants, or over the alleged claims. There is no basis for State
Court jurisdiction under 42 U.S.C. § 1983; proper jurisdiction for
such claims is Federal Court.
(District Court’s Dkt. No. 1 at 17). On March 9, 2009, the state court dismissed
Nettles’s Complaint for failure to state a cause of action and gave Nettles 20 days
to file an Amended Complaint.
On March 20, 2009, Nettles filed an amended complaint. The Amended
Complaint alleges as follows:
6. On December 2, 2005 Defendants violated the privacy and
security of the Plaintiffs protected property under color of law by
searching the plaintiff illegally, which led to the illegal arrest, which
led to the illegal detention and confinement of plaintiff. Plaintiff was
incarcerated for 2 years as a result of the false arrest. Arrest was
overturned on appeal, document attached. Since the arrest was
overturned on appeal, plaintiff has been subjected to systematic
harassment. See attached complaint filed by Plaintiff. This is in
accordance [with] the policies or customs of Leesburg Police to
search for violations of law.
7. Failure to train and supervise- Defendants, Leesburg Police
Department knows to a moral certainty that the individual Defendants
will, in the course of official duties come in contact with the general
public, and will have opportunity for the use and miss-use of his
official office as it relates to the arrest requirements of the Fourth
Amendment.
3
8. Defendant, Leesburg Police Department has a moral and legal
responsibility to train and supervise said Defendants in the proper
performance of his duties for the protection of the Constitutional
rights of the citizens with whom he may come in contact, and has
failed to do so. Defendant, Leesburg Police Department has
displayed gross indifference to the Constitutional rights of the
plaintiff and others in failing to properly train and supervise
Defendant officers, with indifference and inaction has led to the
violation of the Plaintiff’s Constitutional rights and caused other
damages.
9. It is likely that proper training and supervision could have
prevented the violation of the Plaintiffs protected rights, and that
proper training and supervision in the future could prevent further
similar violations.
10. Intentional infliction of emotional distress, Plaintiff has suffered
emotional anguish and harm as a result of the violation of his
Constitutional rights under the Fourth and Fourteenth Amendments to
be free from unlawful and unreasonable searches. Plaintiff has and
still is being harassed by the defendants and officers of the Leesburg
Police Department see attached notarized statement of complaint
made to Leesburg Police Department.
11. Plaintiff is entitled to compensation under 42 U.S.C. 1983 and
“The Florida Civil Rights Act of 1992” and FL Stat title XLV
Chapter 768 Negligence for the damages suffered as a result of the
violation of his federally protected rights.
(Amended Complaint at 1-2). On April 27, 2009, Appellees removed the case to
the United States District Court for the Middle District of Florida. Because
Appellees’ motion to dismiss Nettles’s Amended Complaint was pending in the
state court at the time of removal, Appellees filed a memorandum of law, citing
4
Rule 12(b)(6) of the Federal Rules of Civil Procedure, in support of their motion
to dismiss the Amended Complaint in the District Court on May 7, 2009.
Appellees argued that
[t]he allegations contained in the Amended Complaint are vague and
conclusory, and render it difficult, if not impossible to determine what
claims Plaintiff is attempting to plead. The Amended Complaint as
drafted makes it particularly difficult to determine what claims are
being alleged against the Individual Defendants. [] The Amended
Complaint as drafted makes it impossible for any Defendant to
appropriately respond to the allegations raised.
(District Court’s Dkt. No. 8 at 2). On June 2, 2009, Nettles filed a response to
Appellees’ motion to dismiss the Amended Complaint.1 In it, Nettles maintained
that “the very first paragraph of the Amended Complaint contains the causes of
actions.” The first paragraph reads as follows: “Plaintiff, through the undersigned
attorney being duly sworn files this complaint for Wrongful Arrest and Detention,
Negligence, and Intentional Infliction of emotional distress.” On June 3, 2009, the
District Court granted Appellees’ motion to dismiss Nettles’s Amended
Complaint. It ruled that “the amended complaint did not comply with Federal
1
On the same date, Nettles filed a motion for summary judgment. He asserted that
Appellees failed to dispute “any of the facts in this case in their responses” to Nettles’s Amended
Complaint. On June 3, 2009, the District Court denied Nettles’s motion for summary judgment
as premature. The District Court explained that Appellees “have not yet been required to file an
answer to [Nettles’s] Complaint or Amended Complaint, and therefore it is not possible at this
time to determine what facts, if any, are in dispute. See Fed. R. Civ. 12(a)(4), (b).”
5
Rules of Civil Procedure 8(a) or 10(b).”2 The District Court gave Nettles 20 days
to file a Second Amended Complaint.
On June 22, 2009, Nettles filed a Second Amended Complaint. The Second
Amended Complaint alleges that
On December 2, 2005 [Appellees] violated the privacy and security of
Plaintiff’s protected property under color of law by searching the
plaintiff illegally, which led to the illegal arrest, which led to the
illegal detention and confinement of plaintiff. Plaintiff was
incarcerated for 2 years as a result of the false arrest. Arrest was
overturned on appeal, document attached. Since the arrest was
overturned on appeal, plaintiff has been subjected to systematic
harassment. See attached complaint filed by Plaintiff. This is in
accordance [with] the policies or customs of Leesburg Police to
search for violations of law.
(Second Amended Complaint at 5). On June 26, 2009, Appellees filed a motion to
dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) in which they
argued that
[t]he Second Amended Complaint is practically identical to the
original Complaint and contains the same pleadings deficiencies. The
Second Amended Complaint as a whole is nothing more than a
hodgepodge of purported statements of law and conclusory
allegations. The Second Amended Complaint contains insufficient
factual allegations to state a claim under any theory.
2
Rule 12(a)(4) provides that the requirement in Rule 12(a)(1)(A) that a defendant must
serve an answer within 21 days after being served with the summons and complaint is altered if a
12(b)(6) motion is filed. Rule 12(b)(6) provides that a party may assert the “failure to state a
claim upon which relief can be granted” by motion.
6
(District Court’s Dkt. No. 16 at 1). Nettles did not file a response to the motion to
dismiss his Second Amended Complaint.
On July 22, 2009, the District Court dismissed Nettles’s Second Amended
Complaint with prejudice. It reasoned as follows:
A review of the Second Amended Complaint demonstrates that it still
falls short of the requirements of Rules 8(a) and 10(b). Other than
removing several paragraphs, the Second Amended Complaint is a
verbatim recitation of the prior amended complaint, and does not
provide any guidance as to the legal theories upon which relief is
sought, nor the factual basis for any of his requests for relief.
(emphasis added). The district court also stated:
[Nettles] has now been given three opportunities to file a complaint
which complies with the applicable pleading rules. In each instance,
the plaintiff has submitted almost an identical document with no
attempt to correct any deficiencies. Providing any further chances to
amend would therefore be futile and a waste of attorney and Court
resources . . . . Moreover, [Nettles] has failed to respond to the
[appellees’] latest motion to dismiss, which the Court interprets as
acquiescence in dismissal of this case.
(District Court’s order of July 22, 2009 at 2). Nettles did not file a motion for
reconsideration of the order dismissing the Second Amended Complaint, nor did
he request that the dismissal should be without prejudice.
Nettles filed a timely notice of appeal. This Court has appellate jurisdiction
pursuant to 28 U.S.C. § 1291.
II
7
A
Nettles contends that the District Court erred in dismissing his Second
Amended Complaint for failure to state sufficient facts to state a cause of action
because “a person of average intelligence can understand the pleadings that the
[district court] rejected.” (Appellant’s Br. at 15). Nettles argues that
[he] deserves his day in court and deserves civil damages in
accordance with the injuries he sustained [for] wrongful arrest, illegal
detention, negligence, and intentional infliction of emotional distress
he sustained from the [appellees] simply because [he] has a criminal
background does not forfeit his civil rights and his redress of injuries.
(Id at 15-16). Nettles asserts that “[t]o dismiss a complaint because of the wording
of the complaint is tantamount to a mere gesture of due process. In order to afford
[him] with at least a measure of fundamental fairness he deserves an opportunity
to be heard.” (Id. at 19).
“We review a district court order granting a motion to dismiss de novo,
applying the same standard as the district court.” Randall v. Scott, 610 F.3d 701,
705 (11th Cir. 2010) (citing Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th
Cir. 2002)). “We therefore accept as true the facts as set forth in the complaint
and draw all reasonable inferences in the plaintiff’s favor.” Id. (citing Wilson v.
Strong, 156 F.3d 1131, 1133 (11th Cir. 1998)).
8
“Generally, under the Federal Rules of Civil Procedure, a complaint need
only contain ‘a short and plain statement of the claim showing that the pleader is
entitled to relief.’” Id. (citing Fed.R.Civ.P. 8(a)(2)). “To survive a 12(b)(6)
motion to dismiss, the complaint ‘does not need detailed factual allegations,’ Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), but must
‘give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.’” Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In Twombly, the Supreme Court explained that
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to
relief,” in order to “give the defendant fair notice of what the . . . .
claim is and the grounds upon which it rests,” Conley v. Gibson, 355
U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and
Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff’s
obligation to provide the “grounds” of his “entitle[ment] to relief”
requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do, see Papasan v.
Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on
a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation”). Factual allegations
must be enough to raise a right to relief above the speculative level,
see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216,
pp. 235-236 (3d ed. 2004) [] (“[T]he pleading must contain something
more . . . than . . . a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action”), on [the assumption that all
the] allegations in the complaint are true (even if doubtful in fact) . . .
.
9
Twombly, 550 U.S. at 555 (footnote omitted).
Appellees contend in their responsive brief that the District Court did not err
in dismissing the Second Amended Complaint with prejudice because Nettles
failed to meet “the heightened pleading requirements under the Eleventh Circuit
under 42 U.S.C. § 1983 . . . .” (Appellees’ Br. at 5). However, as this Court
explained in Randall, a heightened pleading standard for § 1983 cases involving
qualified immunity was overruled by the Supreme Court in Ashcroft v. Iqbal, 129
S.Ct. 1937 (2009). Randall, 610 F.3d at 705.3 In Randall, this Court explained:
Over two decades ago, “in an effort to eliminate nonmeritorious
claims on the pleadings and to protect public officials from protracted
litigation involving specious claims, we, and other courts . . .
tightened the application of Rule 8 to § 1983 cases.” Arnold v. Bd. of
Educ. of Escambia County, 880 F.2d 305, 309 (11th Cir. 1989).
Under this heightened pleading standard, plaintiffs were required to
provide “some factual detail” in addition to plain statements showing
that they were entitled to relief. Oladeinde v. City of Birmingham,
963 F.2d 1481, 1485 (11th Cir. 1992). We found such additional
factual detail useful in § 1983 cases in order to make qualified
immunity determinations at the motion to dismiss stage and to
prevent public officials from enduring unnecessary discovery.
3
Appellees’ responsive brief in this appeal was filed on February 26, 2010. Randall was
decided by this Court on June 30, 2010. Thus, the District Court was required to follow the law
of this Circuit that imposed a heightened pleading standard when it dismissed this action for
failure to comply with Rule 8(a)(2) on July 22, 2009. See McGinley v. Houston, 361 F.3d 1328
(11th Cir. 2004) (under the principle of stare decisis, “[a] circuit court’s decision binds the
district courts sitting within its jurisdiction while a decision by the Supreme Court binds all
circuit and district courts.”).
10
Id. However, “[a]fter Iqbal it is clear that there is no ‘heightened pleading
standard’ as it relates to cases governed by Rule 8(a)(2), including civil rights
complaints.” Id. at 710. Therefore, this Court must reject Appellees’ argument
that we must apply a heightened pleading standard in reviewing the merits of
Nettles’s contentions. The Supreme Court explained in Iqbal that
the pleading standard Rule 8 announces does not require “detailed
factual allegations,” but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation. [Twombly, 550 U.S.] at
555 [] (citing Papasan[,] 478 U.S. [at] 286, [] (1986)). A pleading
that offers ‘labels and conclusions” or “formulaic recitation of the
elements of a cause of action will not do.” [Twombly,] at 555 []. Nor
does a complaint suffice if it tenders “naked assertion[s]’ devoid of
‘further factual enhancement.” Id., 557 [].
Iqbal, 129 S.Ct. at 1949.
Nettles’s Second Amended Complaint alleges that Appellees are responsible
for injuries he sustained because they “violated the privacy and security of
Plaintiff’s protected property under color of law by searching the plaintiff
illegally, which led to the illegal arrest, which led to the illegal detention and
confinement of plaintiff.” Nettles failed to allege facts that supported his legal
contentions that he was illegally searched and falsely arrested, as well as illegally
detained and confined.
11
The District Court did not err in dismissing the Second Amended Complaint
because Nettles failed to “provide any guidance as to the legal theories upon
which relief is sought, nor the factual basis for any of his requests for relief.”
(District Court’s Order of July 22, 2009 at 2).
B
Nettles also claims that the City of Leesburg Police Department is liable for
failing to “train and supervise” the individual defendants. “[T]o sustain a 1983
action, a plaintiff must make a prima facie showing that the act or omission of a
person acting under color of state law deprived plaintiff of a right, privilege, or
immunity secured by the Constitution or laws of the United States.” Cannon v.
Taylor, 782 F.2d 947, 949 (11th Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527,
535 (1981)). “Although the Supreme Court has held that counties (and other local
government entities) are “persons” within the scope of § 1983, and subject to
liability, [appellant] cannot rely upon the theory of respondeat superior to hold [a
government entity] liable.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004) (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690 (1978)).
“‘It is only when the ‘execution of the government’s policy or custom
inflicts the injury’ that the municipality may be held liable.’” Id. (citing City of
12
Canton v. Harris, 489 U.S. 378, 385 (1989)). “A [city] does not incur § 1983
liability for injuries caused solely by its employees.” Id. (citing Monell, 436 U.S.
at 694). “Nor does the fact that a plaintiff has suffered a deprivation of federal
rights at the hands of a municipal employee infer municipal culpability.” Id.
(citing Bd. of County Com’rs v. Brown, 520 U.S. 397, 403 (1997)). “Instead, to
impose § 1983 liability on a municipality, a plaintiff must show: (1) that his
constitutional rights were violated; (2) that the municipality had a custom or
policy that constituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” Id. (citing Canton, 489 U.S. at
388).
Nettles’s Second Amended Complaint does not allege sufficient “factual
content that allows the court to draw the reasonable inference” that the City of
Leesburg Police Department is liable for any misconduct under § 1983. Iqbal, 129
S.Ct. at 1949. Nettles’s legal conclusions of § 1983 liability by any of the
Appellees are not supported by factual allegations.
III
Nettles’s Second Amended Complaint also alleges state law claims for
negligence and intentional infliction of emotional distress. “[T]o state a claim for
negligence under Florida law, a plaintiff must allege that the [Appellees] owed the
13
plaintiff a duty of care, that [Appellees] breached that duty, and that the breach
caused plaintiff to suffer damages.” Lewis v. City of St. Petersburg, 260 F.3d
1260, 1262 (11th Cir. 2001). To state a claim for intentional infliction of
emotional distress, a plaintiff must show: “(1) deliberate or reckless infliction of
mental suffering; (2) outrageous conduct; (3) the conduct caused the emotional
distress; and (4) the distress was severe.” Hart v. United States, 894 F.2d 1539,
1548 (11th Cir. 1990). Nettles’s Second Amended Complaint lacks any factual
allegations to support his claim for negligence or intentional infliction of
emotional distress. The state law claims alleged in his Second Amended
Complaint contain solely legal conclusions. They do not comply with the
pleading requirements set forth in Iqbal. The District Court did not err in
concluding that Nettles failed to allege sufficient facts regarding his state law
claims upon which relief could be granted.
IV
Appellees filed a motion for sanctions against Nettles in this Court pursuant
to Rule 38 of the Federal Rules of Appellate Procedure for filing this appeal. In
their Rule 38 motion, Appellees argue that the “[b]rief filed by Nettles in the
instant case is frivolous in nature and sets forth no logical or legal basis for relief
from the District Court’s Judgment.” (Appellees’ motion for sanctions at 8).
14
Rule 38 provides that: “[i]f a court of appeals determines that an appeal is
frivolous, it may, after separately filed motion or notice from the court and
reasonable opportunity to respond, award just damages and single or double costs
to the appellee.” Fed. R. App. P. 38 (emphasis added). “‘Rule 38 sanctions have
been imposed against appellants who raise ‘clearly frivolous claims’ in the face of
established law and clear facts.’” Farese v. Scherer, 342 F.3d 1223, 1232 (11th
Cir. 2003) (quoting Misabec Mercantile, Inc. de Panama v. Donaldson, Lufkin &
Jenrette ACLI Futures, Inc., 853 F.2d 834, 841 (11th Cir. 1988)). For purposes of
Rule 38 sanctions, a claim is frivolous if it is “utterly devoid of merit.” Bonfiglio
v. Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993).
As discussed above, we have concluded that the District Court did not err in
determining that Nettles’s counsel failed to comply with the requirements for
pleading claims upon which relief can be granted pursuant to Rule 12(b)(6).
However, we are also mindful of the fact that the law regarding the requirements
of Rule 8 of the Federal Rules of Civil Procedure in § 1983 cases was still
evolving and unsettled at the time the parties filed their briefs in this Court. Prior
to June 30, 2010, “in an effort to eliminate nonmeritorious claims on the pleadings
and to protect public officials from protracted litigation involving specious claims,
we, and other courts . . . tightened the application of Rule 8 to § 1983 cases.”
15
Randall, 610 F.3d at 705 (quoting Arnold, 880 F.2d at 309). “Under this
heightened pleading standard, plaintiffs were required to provide ‘some factual
detail’ in addition to plain statements showing that they were entitled to relief.”
Id. (quoting Oladeinde, 963 F.2d at 1485). In their motion for Rule 38 sanctions,
Appellees relied, in part, on a heightened pleading standard that is no longer good
law. While we have determined that Nettles has failed to demonstrate that he pled
sufficient facts to state a claim upon which relief can be granted, pursuant to Iqbal
and Randall, we are not persuaded that his appeal is clearly frivolous in light of
this Circuit’s recent rejection of the heightened pleading standard. On the date it
ordered the dismissal of this action for failure to state a claim upon which relief
could be granted, the District Court was required to determine whether the Second
Amended Complaint met a heightened pleading standard. As this Court explained
in Randall, after the notice of appeal was filed, adherence to that standard is
erroneous.4
4
As noted above, after Appellees filed their motion for Rule 38 sanctions, this Court held
that the heightened pleading standard was no longer good law. We regret that counsel for
Appellees failed to file a letter pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure
notifying us that, in dismissing Nettles’s Second Amended Complaint, the District Court applied
a heightened pleading standard that was subsequently rejected by this Court. Assuming that
Appellees failed to advise this Court that they had cited precedent in their responsive brief that
had been overruled because they failed to discover this in preparing for oral argument, this
omission has caused this Court to expend precious time and effort to learn that at least some of
Appellees’ legal contentions are contrary to the law of this Circuit.
16
CONCLUSION
The District Court did not err in dismissing this action with prejudice.
Nettles was given three opportunities to file a complaint that complied with the
applicable pleading requirements of Rule 8. His amendments failed to correct the
deficiencies in his Complaint. Nettles’s Second Amended Complaint does not
contain “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 129 S.Ct. at 1949. Furthermore, Nettles did not
respond to the Appellees’ last motion to dismiss nor did he object to the District
Court’s dismissal. Nettles did not file a motion for reconsideration nor did he
request leave from the District Court to amend his Complaint. This Court has held
that a “district court is not required to grant a plaintiff leave to amend his
complaint sua sponte when the plaintiff, who is represented by counsel, never
filed a motion to amend nor requested leave to amend before the district court.”
Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).
We AFFIRM the District Court’s judgment and DENY Appellees’ motion
for sanctions.
17