The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13683
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-00003-WLS
WALONA HEATH,
Plaintiff-Appellant,
versus
TERRELL COUNTY SCHOOL DISTRICT,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 12, 2020)
Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Walona Heath, proceeding pro se, appeals the district court’s order
dismissing without prejudice her complaint, as supplemented, alleging a
gender-based hostile work environment claim against her former employer, the
Terrell County School District (“School District”), in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5. We affirm.
I. BACKGROUND
In 2018, Heath filed the present pro se lawsuit against her former employer,
the School District, alleging a violation of Title VII in relation to her termination.
Heath stated that the School District’s Superintendent, Robert Aaron, “issued [her]
an unfavorable decision concerning [her] employment,” which resulted in the loss
of her job and home, her “kids . . . being picked on through the school system,”
and her being unable to “attend [her] kids[’] game because of fear of the person in
question.” She sought $100,000 in damages for pain and suffering. She also
attached a decision by the Equal Employment Opportunity Commission to close
the charge she previously had filed against the School District because it was
unable to establish that the information she provided resulted in any statutory
violations.
Heath moved for leave to proceed in forma pauperis (“IFP”), which the
district court granted. The district court, however, also reviewed Heath’s
complaint sua sponte prior to service of process. It determined that, while Heath
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brought her action under Title VII, she failed to explain how the School District
violated that statute because she did not state what the School District’s
“unfavorable decision” entailed or on what unlawful basis she was being
discriminated against; accordingly, the court ordered Heath to supplement the
statement of her claim in her complaint to include particular facts alleging a Title
VII violation. Heath responded by supplementing her complaint and stated that
she was discriminated against because of her gender and was retaliated against for
filing a sexual harassment complaint.
The district court accepted Heath’s supplemental information and ordered
that the School District be served with a copy of her complaint, as supplemented.
The court also advised Heath that she was responsible for diligently prosecuting
her complaint and failure to do so could result in dismissal under Federal Rule of
Civil Procedure 41(b). The School District answered, denied liability, and asserted
certain defenses.
Thereafter, the district court entered two orders. The first order, an initial
scheduling and discovery order, directed the parties, in relevant part, to “act
expeditiously and in good faith to complete discovery as scheduled.” The second
order, issued in October 2018, stated that Heath had sent the court a letter
concerning a dispute between her and the School District; the court advised her
that such an ex parte communication was prohibited by the court’s local rules. The
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court explained to Heath that she could “file any appropriate motion pursuant to
the Rules of Civil Procedure and this [c]ourt’s Local Rules,” but she had to “attach
a certificate of service to all filings; a statement of facts alone [was] not sufficient.”
After attempting to conduct discovery, the School District moved to dismiss
Heath’s complaint; it argued that she was failing to prosecute her case by not (1)
adequately responding to its discovery requests, (2) providing it with discoverable
information, and (3) complying with the Federal Rules of Civil Procedure. The
School District also filed a memorandum of law in support of its motion. It first
contended that Heath engaged in the spoliation of electronically stored evidence,
namely text messages and phone records contained on her cellphone. According to
the School District, Heath should have preserved that evidence because it related to
her claims, she actively failed to do so, and she deprived the School District of the
use of that key evidence. Second, the School District argued that Heath failed to
comply with the court’s discovery order. It also contended that she failed to
diligently prosecute her case by refusing to produce evidence that she claimed was
in her possession and by not serving written discovery requests of her own.
The district court provided Heath with a notification of the School District’s
motion to dismiss and informed her that failure to respond and rebut the legal
arguments that the School District set forth could result in those statements being
accepted as correct. Heath opposed the School District’s motion to dismiss and
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denied purposefully withholding information from the School District. The School
District replied that Heath provided no legal basis for opposing its motion, and her
complaint, as supplemented, should be dismissed.
The district court granted the School District’s motion to dismiss. It
determined that Heath failed to prosecute her claims because she did not serve the
School District with any written discovery requests in an effort to obtain evidence
to prove her case, and she either could not locate or refused to turn over the only
piece of evidence that could support her claims. The court also determined that
Heath failed to comply with federal and local rules by not timely responding to the
School District’s requests to produce the cellphone and notebook, as required
under Federal Rule of Civil Procedure 34(b), and by disregarding the court’s local
rules prohibiting ex parte communication. Lastly, the court found that Heath failed
to comply with its scheduling and discovery order directing the parties to “act
expeditiously and in good faith to complete discovery” because she did not
produce the cellphone and notebook before discovery expired, despite her promises
to do so and the School District’s repeated efforts. The district court concluded
that “Heath clearly delayed prosecuting her case and complying with federal rules,
local rules, and [its] orders.” Thus, it dismissed her Heath’s claims without
prejudice, pursuant to Federal Rule of Civil Procedure 41(b).
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The court entered a final judgment in September 2019. Heath did not
immediately appeal; instead, she moved for reconsideration a few days later.
However, before the court could rule on her motion, nine days later, Heath filed a
notice of appeal designating the final judgment for review. In an order entered on
October 8, 2019, the district court denied Heath’s motion for reconsideration
because she did not allege any intervening change in law and did not present new
evidence that necessitated reconsideration. Heath did not file a new notice of
appeal designating the denial of her motion for reconsideration.
II. DISCUSSION
On appeal, Heath argues that the district court’s dismissal was erroneous.
She does not, however, expressly challenge the district court’s determinations that
she failed to: (1) prosecute her claims; (2) comply with federal and local court
rules; and (3) comply with the court’s scheduling and discovery order.
When appropriate, we will review a Federal Rule of Civil Procedure 41(b)
dismissal for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373,
1374 (11th Cir. 1999). We also liberally construe pro se pleadings. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Nevertheless, the district court is
not required to “rewrite an otherwise deficient pleading in order to sustain an
action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014)
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(quoting GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir.
1998)).
Moreover, issues not briefed on appeal by a pro se litigant are deemed
abandoned. Timson, 518 F.3d at 874. An issue is abandoned where the party does
not plainly and prominently raise it, or where she makes only passing references to
it in her “statement of the case” or “summary of the argument” and fails to advance
arguments or cite authority establishing that those holdings were in error. Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Additionally, an
issue is abandoned when references to it are no more than conclusory assertions or
are “mere ‘background’ to the appellant’s main arguments or when [it] is ‘buried’
within those arguments.” Id. at 682.
Rule 41(b) provides that, “[i]f the plaintiff fails to prosecute or to comply
with [the Rules of Civil Procedure] or a court order, a defendant may move to
dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). However, a local
rule “should not serve as a basis for dismissing a pro se civil rights complaint
where . . . there is nothing to indicate plaintiff ever was made aware of [the local
rule] prior to dismissal.” Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir. 1982).
“Rule 41(b) makes clear that a trial court has discretion to impose sanctions on a
party who fails to adhere to court rules.” Zocaras v. Castro, 465 F.3d 479, 483
(11th Cir. 2006). “ While dismissal is an extraordinary remedy, dismissal upon
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disregard of an order, especially where the litigant has been forewarned, generally
is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989). Moreover, a dismissal without prejudice does not qualify as an abuse of
discretion, so long as the only prejudice to the plaintiff is the prospect of filing a
second lawsuit. Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982).
Heath fails to challenge, on appeal, the grounds relied upon by the court in
its dismissal order, i.e., that she failed to: (1) prosecute her case, by serving the
School District with any written discovery requests, (2) comply with federal and
local rules, by timely responding to the School District’s requests to produce the
cellphone and notebook, and with the court’s rules, by avoiding ex parte
communications, and (3) comply with the court’s scheduling and discovery order.
Heath was required to properly challenge these grounds to avoid abandonment;
however, even construing her brief liberally, she fails to do so. See Sapuppo, 739
F.3d at 680. She does not raise any argument or cite any authority as to her failure
to produce evidence, her ex parte communication, or her failure to prosecute. See
id. at 681. She simply concludes that she was terminated in retaliation for
complaining of sexual harassment. See id. at 682. Similarly, she does not raise
any challenge to the denial of her motion for reconsideration. See id. Accordingly,
Heath has abandoned those grounds on appeal. See id.
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Furthermore, even if Heath is deemed to have implicitly preserved
challenges in the preceding respect, the district court did not abuse its discretion in
dismissing her complaint, as supplemented. She did not serve the School District
with any written discovery requests or otherwise attempt to obtain evidence to
prove her case, and she repeatedly failed to produce the correct cellphone and
notebook, despite her promises to do so and the School District’s multiple requests.
Additionally, she failed to comply with Federal Rule of Civil Procedure 34(b) by
not timely responding to the School District’s production requests, despite
receiving an extension to do so. She similarly failed to comply with the district
court’s local rules regarding ex parte communication by sending the court a letter
alleging abuse by the School District. Lastly, she did not comply with the court’s
scheduling and discovery order to “act expeditiously and in good faith complete
discovery.” The district court warned her that a failure to respond to the School
District’s production requests and diligently prosecute her complaint could result
in dismissal, and the School District reminded her several times of her obligation
to produce the cellphone and notebook. See Moon, 863 F.2d at 837; Mitchell, 682
F.2d at 887. Thus, the district court did not abuse its discretion in dismissing her
complaint without prejudice. See Kotzen, 678 F.2d at 140.
AFFIRMED.
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