The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF
No. 04-15673 APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ June 27, 2005
D.C. Docket No. 03-02025-CV-RWS-1
EUGENE HARDIN,
Plaintiff-Appellant,
versus
CITY OF ATLANTA,
ANGELIQUE PULLEN,
et al.
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(June 27, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Eugene Hardin, a taxi-cab operator whom an Atlanta administrative tribunal
found guilty of violating several city ordinances, appeals pro se the district court’s
dismissal under Fed.R.Civ.P. 12(b) of his 42 U.S.C. § 1983 action alleging that the
use of an administrative tribunal violated his federal constitutional rights, and the
district court’s grant of summary judgment to the defendants in his Georgia law
action under supplemental jurisdiction, 28 U.S.C. § 1367, seeking a declaratory
judgment stating that two Atlanta ordinances are preempted by state law,
O.C.G.A. § 9-4-1, et seq.
Hardin’s complaint named the City of Atlanta as well as several of its
hearing officers as defendants. The hearing officers were sued both in their
individual and official capacities.1 The district court found that Hardin’s state law
claims were barred by his failure to give the ante-litem notice required by
O.C.G.A. § 36-33-5. The district court also found that Hardin’s § 1983 claims
against the Individual Defendants were barred by qualified immunity and that his
§ 1983 claims against the Official Defendants failed as a matter of law because he
had not stated facts establishing a federal constitutional violation.
1
We will refer to the City of Atlanta and the hearing officers in their official capacities
as the “Official Defendants,” and refer to the hearing officers in their individual capacities as the
“Individual Defendants.” These labels correspond to the groups represented by each of the
appellees’s separate briefs.
2
On appeal, Hardin first argues that the Defendants violated his Sixth
Amendment rights by improperly adjudicating his ordinance violations in
administrative proceedings. We construe this argument as contending that Hardin
stated valid § 1983 claims based upon the violation of his Sixth Amendment rights
and that the district court erred in dismissing Hardin’s § 1983 claims against the
Individual Defendants and granting the Official Defendants summary judgment on
the § 1983 claims against them. Second, Hardin argues that, because the
Individual Defendants exceeded their authority under state law, the district court
erred in dismissing his § 1983 claims against them. Third, Hardin argues that the
district court erred by denying his motion for leave to amend his complaint.
Lastly, we note that arguments not raised in an appellant’s initial brief are
generally considered waived. See Farrow v. West, 320 F.3d 1235, 1242 (11th Cir.
2003). Because Hardin’s initial brief did not challenge the district court’s finding
that his state law claims were barred by his failure to provide proper ante-litem
notice, we decline to address Hardin’s argument that the city ordinances under
which he was fined were preempted by Georgia law.
“We review the district court’s grant of summary judgment de novo,
applying the same legal standards as the district court.” McCormick v. City of
Fort Lauderdale, 333 F.3d 1234, 1242-43 (11th Cir. 2003) (stating standard of
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review in § 1983 case). Summary judgment is appropriate if the evidence
establishes “no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); accord McCormick,
333 F.3d at 1243. Because the district court granted the Official Defendants
summary judgment on Hardin’s § 1983 claims, the above standard of review
applies to its disposition of these claims.
“We review de novo a district court’s decision to grant or deny the defense
of qualified immunity on a motion to dismiss, accepting the factual allegations in
the complaint as true and drawing all reasonable inferences in the plaintiff's
favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003). Because
Hardin’s § 1983 claims against the Individual Defendants were dismissed on the
basis of qualified immunity, this standard of review applies to Hardin’s claims
against the Individual Defendants.
When a defendant asserts the defense of qualified immunity, “the first
inquiry must be whether a constitutional right would have been violated on the
facts alleged; second, assuming the violation is established, the question whether
the right was clearly established must be considered.” Saucier v. Katz,
533 U.S. 194, 200, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Thus, the
district court’s dismissal of Hardin’s § 1983 claims against the Individual
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Defendants was appropriate if Hardin did not aver facts which would constitute
the violation of a federal constitutional right. See id. Similarly, to suceed with
his § 1983 claims against the Official Defendants, Hardin must establish a
violation of a federal constitutional or statutory right. Schwier v. Cox, 340 F.3d
1284, 1290 (11th Cir. 2003). Thus, if Hardin did not create a question of material
fact as to whether his federal constitutional rights were violated, the district
court’s grant of summary judgment to the Official Defendants on the § 1983
claims was proper. See id.
“It is well-established that the Sixth Amendment, like the common law,
reserves th[e] jury trial right for prosecutions of serious offenses, and that there is
a category of petty crimes or offenses which is not subject to the Sixth
Amendment jury trial provision.” Lewis v. United States, 518 U.S. 322, 325, 116
S.Ct. 2163, 2166, 135 L.Ed.2d 590 (1996). Furthermore, “[a]n offense carrying a
maximum prison term of six months or less is presumed petty, unless the
legislature has authorized additional statutory penalties so severe as to indicate
that the legislature considered the offense serious.” Id. at 326, 116 S.Ct. at
2166-67. Similarly, the Sixth Amendment right to appointed counsel extends only
to cases in which the accused is actually imprisoned. Alabama v. Shelton,
535 U.S. 654, 661, 122 S.Ct. 1764, 1769, 152 L.Ed.2d 888 (2002).
5
In the instant case, none of the ordinances which Hardin was accused of
violating carried the potential of a custodial sentence, nor does Hardin argue that
any such sentence was imposed. Accordingly, Hardin was not entitled to a trial by
jury or appointed counsel, and the denial of these procedural safeguards did not
violate the Sixth Amendment.
We construe Hardin’s argument that the Individual Defendants exceeded
their authority under state law as contending that, because the defendants’ actions
were not authorized by state law, the district court erred in granting them qualified
immunity. However, for the reasons that follow, we find it unnecessary to address
whether the Individual Defendants exceeded their authority under state law.
In the instant case, Hardin has waived any § 1983 claim premised upon the
violation of the First, Fourth, Fifth or Fourteenth Amendment by not arguing such
a theory in his initial brief. See Farrow, 320 F.3d at 1242. Furthermore, while
Hardin’s first and second assignments of error in his appellate brief arguably
contend that his Sixth Amendment rights were violated, this argument is without
merit for the reasons discussed above. Accordingly, to the extent Hardin has not
waived his constitutional claims, he has not properly alleged facts which would
represent a violation of his federal constitutional rights and, therefore, did not
plead a valid § 1983 cause of action. Accordingly, even assuming arguendo that
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the Individual Defendants were not entitled to qualified immunity, the district
court’s dismissal of Hardin’s § 1983 claims against the Individual Defendants was
still proper.
We review a district court’s denial of leave to amend for abuse of discretion.
Bryant v. Dupree, 252 F.3d 1161,1163 (11th Cir. 2001). However, a district
court’s discretion to dismiss a complaint without leave to amend is severely
restricted by Fed.R.Civ.P. 15(a), which requires that leave to amend “shall be
freely given when justice so requires.” Fed.R.Civ.P. 15(a); accord Bryant, 252
F.3d at 1163. Nevertheless, a district court need not grant leave to amend “where
amendment would be futile.” Bryant, 252 F.3d at 1163.
In the instant case, the district court concluded that Hardin’s state law
claims were barred by his failure to give proper ante-litem notice, and Hardin has
not challenged this finding on appeal. Accordingly, because Hardin has waived
the right to contest a fatal defect in his state law claims, these claims are no longer
at issue. Furthermore, Hardin has not indicated what additional facts he would
like to plead in support of his federal law claims, much less how any such facts
would establish a § 1983 cause of action. Accordingly, the district court did not
abuse its discretion by denying Hardin’s motion for leave to amend.
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Upon review of the district court record and briefs on appeal, we find no
reversible error.
AFFIRMED.2
2
Hardin’s request for oral argument is denied.
8