# Torrence Windell Allen v. Tennille Gooden

> Court of Appeals for the Eleventh Circuit · June 4, 2013 · 521 F. App'x 754

URL: https://www.frixlaw.com/law-library/cases/875322

## Case

- **Full name:** Torrence Windell ALLEN, Plaintiff-Appellant, v. Tennille GOODEN, # 9925 Florida Dept. of Motor Vehicles, Trooper E.L. Paige, Jr. # 0906, Florida Highway Patrol, Florida Department of Highway Safety and Motor Vehicles, Defendants-Appellees
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** June 4, 2013
- **Citations:** 521 F. App'x 754
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Marcus, Wilson, Anderson
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case: 12-14859 Date Filed: 06/04/2013 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-14859
Non-Argument Calendar
________________________

D.C. Docket No. 0:11-cv-61804-RSR

TORRENCE WINDELL ALLEN,

Plaintiff-Appellant,

versus

TENNILLE GOODEN,
#9925 Florida Dept. of Motor Vehicles,
TROOPER E. L. PAIGE, JR. #0906,
Florida Highway Patrol,
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR
VEHICLES,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(June 4, 2013)
Case: 12-14859 Date Filed: 06/04/2013 Page: 2 of 7

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Torrence Windell Allen, proceeding pro se, appeals the district court’s grant

of summary judgment in favor of Tennille Gooden, a Florida Department of Motor

Vehicles (“DMV”) employee, and the court’s grant of Florida Highway Patrol

Trooper E.L. Paige, Jr.’s motion to dismiss Allen’s 42 U.S.C. § 1983 complaint.

Allen’s complaint alleged that Gooden and Paige had violated his constitutional

rights when he was detained due to Gooden’s false statements to Paige. Allen

claimed that while at the DMV he attempted to pay Gooden, the cashier, when she

let another customer go ahead of him. According to documents attached to his

complaint, Allen became upset, reached over the counter, and said, “[H]ere’s my

money,” and Gooden asked him not to reach over the counter. Allen retorted, “Just

take my money, I don’t fear no man, it’s kill or be killed.” Gooden told Paige what

Allen had said, and Paige moved Allen to another part of the DMV until a police

officer arrived and questioned Allen, who was then released and not charged. The

district court held that both Paige and Gooden were entitled to qualified immunity.

On appeal, Allen argues that: (1) Gooden’s false, contradictory statements

should have rendered her ineligible for qualified immunity, since her statements to

law enforcement officers established that she knew she was lying to have Allen

arrested, and knew that this violated the law; and (2) the district court abused its

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discretion in failing to enter a default judgment against Paige because Paige

admitted that his motion to dismiss was untimely. After careful review, we affirm.

We review de novo the district court’s disposition of a summary judgment

motion based on qualified immunity, resolving all issues of material fact in favor

of the plaintiff and then addressing the legal question of whether the defendant is

entitled to qualified immunity under the plaintiff’s version of the facts. Case v.

Eslinger, 555 F.3d 1317, 1324-25 (11th Cir. 2009). We review the denial of a

motion for a default judgment for abuse of discretion. Mitchell v. Brown &

Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002).

First, we reject Allen’s claim that the district court erred in granting

summary judgment to Gooden on the basis of qualified immunity. A district court

shall grant summary judgment where the evidence shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law. Fed.R.Civ.P. 56(a). Pro se pleadings are held to a less strict standard than

counseled pleadings and are construed liberally as a result. Trawinski v. United

Techs., 313 F.3d 1295, 1297 (11th Cir. 2002). We may affirm on any ground that

appears in the record, regardless of whether that ground was considered or relied

upon by the district court. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007). An argument that is not briefed is deemed abandoned on appeal.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

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To state a claim under § 1983, a plaintiff must allege facts sufficient to

establish that (1) the defendant deprived him of a right secured under the U.S.

Constitution or federal law, and (2) such deprivation occurred under color of state

law. Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010). When asserting

the affirmative defense of qualified immunity, an official first must establish that

she was engaged in a discretionary function when she performed the acts at issue

in the complaint. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263-64

(11th Cir. 2004). If the official shows that she was engaged in a discretionary

function, the burden shifts to the plaintiff to establish that: “(1) the defendant

violated a constitutional right, and (2) this right was clearly established at the time

of the alleged violation.” Id. at 1264. If the plaintiff establishes both prongs, the

defendant may not obtain summary judgment on qualified immunity grounds. Id.

The Fourth Amendment protects individuals from “unreasonable searches

and seizures.” U.S. Const. amend. IV. Seizures by law enforcement are

reasonable under the Fourth Amendment if they are justified by probable cause to

believe that the detainee committed a crime. Croom v. Balkwill, 645 F.3d 1240,

1246 (11th Cir. 2011). The Fifth Amendment protects, in relevant part, the right to

a grand jury indictment, to be free from double jeopardy, and to be free from

compelled self-incrimination. See U.S. Const. amend. V.

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The Fourteenth Amendment provides that no state shall deprive any person

of life, liberty, or property without due process of law. U.S. Const. amend. XIV.

A false imprisonment claim brought pursuant to § 1983 requires a showing of both

the common-law elements of a claim of false imprisonment and a due process

violation. Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). The elements

of common law false imprisonment are (1) an intent to confine; (2) an act resulting

in confinement; and (3) the victim’s awareness of confinement. Id. “The

Fourteenth Amendment Due Process Clause includes the right to be free from

continued detention after it was or should have been known that the detainee was

entitled to release.” Id. (quotation omitted).

Liberally construed, Allen’s argument asserts that he was falsely imprisoned,

in violation of the Fourteenth Amendment, and that he was illegally detained, in

violation of the Fourth Amendment. However, he does not raise any issue relating

to criminal charges or compelled self-incrimination on appeal, and has therefore

abandoned his Fifth Amendment claim.

As for Allen’s Fourth Amendment claim against Gooden, she did not detain

Allen, but instead she merely explained the incident to an officer and indicated that

she wished to press charges. Accordingly, Gooden did not violate Allen’s Fourth

Amendment rights because she did not “seize” Allen. As for Allen’s Fourteenth

Amendment claim, even assuming that he established a claim of false

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imprisonment, he points to no evidence to show, and he does not allege, that his

detention continued after it was known or should have been known that he was

entitled to be released. As a result, Gooden did not violate Allen’s Fourth or

Fourteenth Amendment rights, and the district court did not err in finding that she

was entitled to qualified immunity on both claims.

We also find no merit in Allen’s argument that the district court abused its

discretion in failing to enter a default judgment against Paige. “When a party

against whom a judgment for affirmative relief is sought has failed to plead or

otherwise defend, and that failure is shown by affidavit or otherwise, the clerk

must enter the party’s default.” Fed.R.Civ.P. 55(a). “Entry of judgment by default

is a drastic remedy which should be used only in extreme situations.” Mitchell,

294 F.3d at 1316-17 (quotation omitted). Generally, a party must serve an answer

to a complaint within 21 days of being served with the summons and complaint.

Fed.R.Civ.P. 12(a)(1)(A)(i). A motion to dismiss for failure to state a claim

generally must be made with or before an answer. See Fed.R.Civ.P. 12(b). A

passing reference to an issue in one’s appellate brief is insufficient to preserve that

issue on appeal. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6

(11th Cir. 1989) (holding that a reference to an issue in a party’s “statement of the

case” was insufficient to preserve it for appellate review, where the party

elaborated no arguments on the merits of the issue).

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In this case, the district court clerk denied Allen’s first motion for default

judgment against Paige, indicating that there was no proof of service in the record.

Paige was served with the complaint on February 22, and Paige moved to dismiss

on March 19, and, thus, the motion to dismiss was untimely. However, by the time

Allen filed his second motion for a default judgment, Paige had defended the

action, since he had filed his motion to dismiss. Thus, this was not an “extreme

situation” warranting the drastic remedy of a default judgment, and the court did

not abuse its discretion in denying Allen’s motion for a default judgment against

Paige. See Mitchell, 294 F.3d at 1317 (holding that the district court did not abuse

its discretion in denying the plaintiff’s motion for a default judgment where the

defendant filed a motion to dismiss “a short time after the deadline for responsive

pleadings” had passed, and the plaintiff had not shown that the defendant’s failure

to file an answer prejudiced him in any way).

Finally, to the extent that Allen’s appellate brief may be read as challenging

the dismissal of his claims against Paige on the merits, Allen has abandoned any

argument like this because, even read liberally, his passing reference to that issue is

insufficient to preserve if on appeal. Accordingly, Allen has not established that

the court erred in denying his motion for a default judgment or in granting Paige’s

motion to dismiss, and we affirm.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/875322. Public record. Not legal advice.