Jimmy Glenn, et al v. Cleveland Brothers, Inc., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10680
Non-Argument Calendar
____________________
JIMMY GLENN,
ESTATE OF ANDERSON CHILDS,
ROBIN CHILDS,
Plaintiffs-Appellants,
versus
CLEVELAND BROTHERS, INC.,
TIMOTHY WOODSON,
Administrator of the Estate of DoctorWoodson,
JACOB A. WALKER,
Judge,
WILLIE DUMAS,
of the Estate of Minnie Morgan,
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 1 of 16

-- 1 of 16 --

2 Opinion of the Court 22-10680
LEE COUNTY CIRCUIT COURT, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 3:20-cv-00957-ECM-KFP
____________________
Before J ILL PRYOR , BRANCH, and H ULL , Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants Jimmy Glenn, Robin Childs, and the
Estate of Anderson Childs, proceeding pro se, appeal the district
court’s dismissal of their amended complaint, which raised several
constitutional claims stemming from a land dispute and related
state court proceedings. On appeal, plaintiffs-appellants present
specific arguments as to the dismissal of only one of their claims.
They also raise four general procedural challenges as to how their
case was handled, including that the district court erred by:
(1) referring their case to a magistrate judge; (2) considering
materials outside their amended complaint when ruling on
defendants’ motions to dismiss; (3) denying their motion to
consolidate their case with two state court proceedings; and
(4) denying leave to amend their amended complaint.
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 2 of 16

-- 2 of 16 --

22-10680 Opinion of the Court 3
For the reasons below, we (1) dismiss the appeal as to
plaintiff-appellant Estate of Anderson Childs and (2) affirm the
district court’s order dismissing the other plaintiffs-appellants’
amended complaint and denying their motions to consolidate and
for leave to amend.
I. THE ESTATE OF ANDERSON CHILDS IS DISMISSED
In our October 21, 2022 order, we explained that
plaintiff-appellant Estate of Anderson Childs could not proceed pro
se or be represented by a non-lawyer on appeal. We cautioned that
the Estate would be dismissed as a party to this appeal if it failed to
obtain counsel and have counsel file an appearance and amended
notice of appeal signed on the Estate’s behalf within 30 days of our
order. Because the Estate has not complied with our order, we
DISMISS this appeal as to the Estate. We now turn to the other
plaintiffs.
II. BACKGROUND
In November 2020, plaintiffs Glenn and Robin Childs
(“plaintiffs”), filed an initial pro se complaint centering on a state
court action between the heirs of Ben and Alice Woodson. While
that state court action is largely unrelated to the issues on appeal,
we briefly summarize it for context.
A. State Court Action
The state court action involved the ownership of 40 acres of
land. Plaintiffs alleged that the land was worth approximately
$300,000 per acre. Plaintiffs also alleged that Doc Woodson, one
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 3 of 16

-- 3 of 16 --

4 Opinion of the Court 22-10680
of Ben and Alice Woodson’s children, fraudulently obtained from
his siblings ownership of the entire 40-acre property.1 Thereafter,
Cleveland Brothers, Inc. purchased part of that property from Doc
Woodson’s daughters. Cleveland Brothers then initiated a
partition action in state court, and this federal suit eventually
followed.
B. Initial Federal Complaint
In their initial pro se federal complaint, plaintiffs Glenn and
Robin Childs sought, among other forms of relief, injunctive relief
related to the state court proceedings and to Cleveland Brother’s
ability to claim “any estate, right, or title to the subject property
other than a monetary interest.” Plaintiffs’ initial complaint sued
defendants Cleveland Brothers; Timothy Woodson, as the
administrator of the estate of Doc Woodson; the Lee County
Circuit Court and Judge Jacob Walker; and Willie Dumas, as the
administrator of the estate of Minnie Morgan.
The district court referred the case to a magistrate judge
under 28 U.S.C. § 636 “for all pretrial proceedings and entry of any
orders or recommendations as may be appropriate.”
C. Amended Complaint and Motions for Leave to Amend
After Judge Walker and Cleveland Brothers filed motions to
dismiss, plaintiffs sought, and the magistrate judge granted, leave
to amend the initial complaint. Plaintiffs brought their amended
1 Anderson Childs was the son of Frances Woodson Childs, one of Doc’s
siblings, and Jimmy Glenn and Robin Childs are Frances’s grandchildren.
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 4 of 16

-- 4 of 16 --

22-10680 Opinion of the Court 5
complaint against the following additional defendants: Lee County
Circuit Court clerk Mary Roberson; state court judges John
Denson and Bill English; an “Unnamed Bailiff assigned to Judge
Walker”; and the Water Works Board of the City of Auburn
(collectively with those listed in the initial complaint “defendants”).
Plaintiffs raised several claims under the Fifth, Sixth,
Seventh, Eighth, Thirteenth, and Fourteenth Amendments and
42 U.S.C. §§ 1983, 1985. Plaintiffs again sought injunctive relief
related to the state court proceedings and an injunction preventing
Cleveland Brothers from claiming certain rights and interests in the
disputed land.
In relevant part, the amended complaint raised a claim
against the unnamed state court bailiff under the First and
Fourteenth Amendments and § 1983. Regarding this claim,
plaintiffs alleged that on January 7, 2013, they were locked out of a
state court courtroom in which a hearing on the disputed land was
being held. Plaintiffs alleged that, “[u]pon knocking there was no
response. At the close of the hearing the door was opened and no
explanation given.”
Before defendants responded to the amended complaint,
plaintiffs, still pro se, filed a second motion for leave to amend,
which the magistrate judge denied. The magistrate judge stated
that plaintiffs had not set forth reasons supporting the need to
amend, and that any future motion to amend had to provide such
reasons and include the proposed second amended complaint. The
magistrate judge cautioned that, if it granted leave to amend, “no
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 5 of 16

-- 5 of 16 --

6 Opinion of the Court 22-10680
further amendments w[ould] be allowed absent exceptional
circumstances.” (Font altered.)
Plaintiffs, still pro se, filed a third motion to amend. Plaintiffs
explained that they wished to amend the amended complaint to
bring § 1985 and “discriminatory animus” claims against additional
defendants, to “[i]nitiate contact with counsel representing
unnamed Bailiff,” and to reraise allegations from the initial
complaint that were omitted in the amended complaint. In a July
12, 2021 order, the magistrate judge granted plaintiffs “one final
opportunity to file an amended complaint.” However, the
magistrate judge cautioned that: (1) plaintiffs had until July 26,
2021 to file a second amended complaint; (2) “no extensions to this
deadline w[ould] be granted”; (3) “no further amendments w[ould]
be allowed absent exceptional circumstances”; and (4) the case
would proceed on the amended complaint if plaintiffs failed to file
a second amended complaint. Plaintiffs never filed a second
amended complaint.
D. Plaintiffs’ Motion to Consolidate with State Cases and
Defendants’ Motions to Dismiss
Plaintiffs, remaining pro se, filed a Federal Rule of Civil
Procedure 42 motion to consolidate their federal case with two
separate state court actions: (1) a state court proceeding against the
City of Auburn and the Water Works Board, and (2) a state traffic
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 6 of 16

-- 6 of 16 --

22-10680 Opinion of the Court 7
court proceeding involving Glenn.2 Plaintiffs asserted that
defendant Judge Walker presided over both state court
proceedings and had retaliated against them because they named
him as a defendant in their federal suit.
Several defendants filed motions to dismiss the amended
complaint under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim for relief. Defendant Cleveland Brothers attached
several documents to its motion to dismiss, including an affidavit,
state court documents, and an obituary for Anderson Childs.
The magistrate judge submitted to the district court a report
and recommendation (“R&R”) that the defendants’ motions to
dismiss be granted because the amended complaint failed to state a
viable claim against any defendant. The magistrate judge
concluded, inter alia, that plaintiffs’ allegations were largely
conclusory, and some claims were barred by judicial immunity,
Eleventh Amendment immunity, or the applicable statute of
limitations.
Regarding plaintiffs’ claim against the unnamed bailiff, the
magistrate judge determined that three grounds supported
dismissal: (1) fictitious-party pleading is generally not permitted in
federal court; (2) plaintiffs’ allegations—that they were locked out
of court and were not permitted to enter when they knocked—
failed to state a claim for relief against this unnamed bailiff; and
2 These actions appear to be different than the state court land dispute
summarized earlier in this opinion.
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 7 of 16

-- 7 of 16 --

8 Opinion of the Court 22-10680
(3) even if these allegations stated a claim for relief, plaintiffs
alleged that the events giving rise to this claim took place in January
2013, meaning the two-year statute of limitations expired before
plaintiffs’ November 2020 initial complaint.
Plaintiffs objected to the R&R, and they requested leave to
amend to correct deficiencies in the amended complaint. Among
other objections, plaintiffs argued that their claim against the
unnamed bailiff should not be dismissed because: (1) only one
individual was assigned to a judge as a bailiff and plaintiffs provided
the date of this individual’s violations, meaning more specific
information was unnecessary to identify this individual; and (2) the
two-year statute of limitations had not expired because their claim
was not actionable until the state court issued a final decision in
March 2020.
The district court overruled plaintiffs’ objections, adopted
the R&R, granted defendants’ motions to dismiss, denied leave to
amend, denied all other pending motions as moot, and dismissed
plaintiffs’ amended complaint. The district court denied leave to
amend further on two independent grounds. First, the district
court found that plaintiffs already had a chance to amend their
amended complaint and file a second amended complaint—which
they failed to do—and granting additional leave to amend would
prejudice defendants. The district court also noted that plaintiffs
were warned that this prior chance to amend was their “one final
opportunity,” and they offered no explanation for their failure to
file a second amended complaint. Second, the district court found
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 8 of 16

-- 8 of 16 --

22-10680 Opinion of the Court 9
that amendment would be futile because plaintiffs had been unable
to state a viable claim in their initial or amended complaints.
III. STANDARDS OF REVIEW
We review de novo a district court’s Rule 12(b)(6) dismissal
for failure to state a claim. Davis v. City of Apopka, 78 F.4th 1326,
1331 (11th Cir. 2023). We typically review for abuse of discretion
the denial of leave to amend, although we review de novo a decision
that a particular amendment would be futile. Crawford’s Auto Ctr.,
Inc. v. State Farm Mut. Auto. Ins. Co., 945 F.3d 1150, 1163 (11th Cir.
2019). We review for abuse of discretion the district court’s denial
of a motion to consolidate. Eghnayem v. Bos. Sci. Corp., 873 F.3d
1304, 1313 (11th Cir. 2017). While we liberally construe pro se
pleadings, we may not act as counsel or rewrite otherwise deficient
pleadings in order to sustain an action. Bilal v. Geo Care, LLC,
981 F.3d 903, 911 (11th Cir. 2020).
IV. DISCUSSION
On appeal, plaintiffs raise one substantive claim as to the
district court’s dismissal order, arguing that the district court
should not have dismissed their claim against the unnamed bailiff.
They also raise four general procedural challenges as to how their
whole case was handled. We review each in turn.
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 9 of 16

-- 9 of 16 --

10 Opinion of the Court 22-10680
V. SUBSTANTIVE CLAIM
A. Substantive Challenge to the Dismissal of the Unnamed
Bailiff Claim
Plaintiffs argue that the magistrate judge erred by finding
that their claim against the unnamed bailiff was time barred.
However, the R&R, which the district court adopted,
recommended dismissing this claim for three independent
grounds: (1) fictitious-party pleading is generally not permitted in
federal court; (2) the amended complaint failed to state a claim
against this unnamed bailiff; and (3) even if the amended complaint
stated a claim for relief, the statute of limitations had expired. By
presenting arguments on appeal as to only this third ground,
plaintiffs abandoned any challenge to the other two independent
grounds for dismissing this claim. See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails
to challenge properly on appeal one of the grounds on which the
district court based its judgment, he is deemed to have abandoned
any challenge of that ground, and it follows that the judgment is
due to be affirmed.”). Accordingly, we affirm the dismissal of
plaintiffs’ claim against the unnamed bailiff on these two other
independent grounds.
B. Statute of Limitations as to the Unnamed Bailiff Claim
Even if we were to reach the third ground, plaintiffs’ claim
as to the unnamed bailiff was undoubtedly time-barred under
Alabama’s two-year statute of limitations. See Ala. Code § 6-2-38(l);
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (stating that
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 10 of 16

-- 10 of 16 --

22-10680 Opinion of the Court 11
constitutional claims brought under § 1983 are subject to the
statute of limitations for personal injury actions in the state in
which the § 1983 action was filed). Plaintiffs’ claim against the
unnamed bailiff was based on allegations that the bailiff locked
them out of a courtroom on January 7, 2013, at which point the
facts supporting their cause of action were or should have been
“apparent to a person with a reasonably prudent regard for his
rights.” McNair, 515 F.3d at 1173 (quotation marks omitted). But
plaintiffs did not initiate the underlying lawsuit until November
2020, well past this two-year statute of limitations.3
VI. PROCEDURAL CHALLENGES
A. Referral to the Magistrate Judge
First, plaintiffs argue that the district court should not have
referred their case to a magistrate judge because their initial and
amended complaints sought injunctive relief.
A district court may designate a magistrate judge to “hear
and determine” any pretrial matters pending before the court,
except certain “dispositive” motions, including motions for
injunctive relief. 28 U.S.C. § 636(b)(1)(A). However, a district
3 In the “Statement of Issues” section, in the “Summary of Argument” section,
and in an issue heading of their appellate brief, plaintiffs reference the district
court’s dismissal of some defendants based on immunity. But even liberally
construing plaintiffs’ appellate brief, they fail to raise any argument
challenging the district court’s immunity rulings. Accordingly, plaintiffs have
abandoned this issue. See Sapuppo, 739 F.3d at 681-82 (holding that a party
abandons an issue by making only passing references to it in the statement of
the case, the summary of the argument, or the argument sections of a brief).
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 11 of 16

-- 11 of 16 --

12 Opinion of the Court 22-10680
court may have a magistrate judge “conduct hearings” and submit
to the district court “proposed findings of fact and
recommendations for the disposition” of a motion for injunctive
relief. 28 U.S.C. § 636(b)(1)(A), (B). The district court remains free
to “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir.
2006).
Here, the district court referred the case to the magistrate
judge “for all pretrial proceedings and the entry of any . . .
recommendations as may be appropriate.” Upon defendants’
motions to dismiss, the magistrate judge submitted its
recommendation to the district court that those motions be
granted, and the district court adopted that recommendation after
a de novo review of the record and objections. This procedure was
proper under § 636(b)(1).
B. Dismissal under Rule 12(b)(6)
Second, plaintiffs argue that the district court erred by
dismissing the amended complaint under Rule 12(b)(6) because the
district court considered materials outside that pleading. With
certain exceptions not relevant here,4 if a district court considers
4 For example, a district court may consider documents attached to a motion
to dismiss without converting that motion into one for summary judgment if
the attached documents are central to plaintiff’s claim and are undisputed.
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). The parties do not argue
that this exception applies here.
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 12 of 16

-- 12 of 16 --

22-10680 Opinion of the Court 13
materials outside the complaint when ruling on a Rule 12(b)(6)
motion, it must convert that motion into one for summary
judgment and afford the parties full discovery. Day v. Taylor,
400 F.3d 1272, 1275-76 (11th Cir. 2005).
Here, Cleveland Brothers attached several documents to its
motion to dismiss, including an affidavit, state court documents,
and a news article. But plaintiffs do not direct us to any portion of
the R&R or the district court’s order where these outside materials
were considered. And our independent review of the R&R and the
district court’s order reveals that they did not consider outside
materials. Accordingly, the district court did not err in dismissing
the amended complaint under Rule 12(b)(6).
C. Denial of Motion to Consolidate with State Court Cases
Third, plaintiffs argue that the district court erred by
declining to consolidate their federal case with certain state court
and traffic court cases under Rule 42(a). In addition to granting the
defendants’ motions to dismiss and dismissing the case, the district
court denied as moot all remaining motions, which included
plaintiffs’ motion to consolidate. On appeal, however, plaintiffs
argue only the merits of the motion to consolidate, and they fail to
challenge the district court’s dismissal of this motion as moot.
Because we discern no error in the district court’s dismissal of
plaintiffs’ amended complaint, we affirm the denial of their motion
to consolidate as moot. See Smith v. Sch. Bd. of Orange Cnty., 487 F.3d
1361, 1366 (11th Cir. 2007) (affirming the denial of objections to a
summary judgment R&R as moot because the summary judgment
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 13 of 16

-- 13 of 16 --

14 Opinion of the Court 22-10680
order was due to be affirmed and the party failed to argue on appeal
that his objections were not moot).
But even if plaintiffs’ motion to consolidate was not mooted
by the dismissal of the amended complaint, the district court did
not abuse its discretion by declining to consolidate plaintiffs’ federal
action with the two state court actions. The state court actions
were necessarily not “before” the federal district court, as required
to be consolidated under Rule 42(a). Fed. R. Civ. P. 42(a) (providing
that “actions before the court involv[ing] a common question of
law or fact” may be consolidated).
D. Leave to Amend was Unwarranted
Finally, plaintiffs argue the district court erred by denying
their request for a second opportunity to amend the amended
complaint because amendment would not have been futile. But
the district court denied leave to amend for two reasons:
(1) defendants would be prejudiced because the court had already
granted leave to amend the amended complaint, which plaintiffs
failed to do without explanation; and (2) amendment would be
futile. Again, by failing to present argument on this first basis for
denying leave to amend, plaintiffs “have abandoned any challenge”
to its ruling that defendants would be prejudiced, “and it follows
that the [denial of leave to amend] is due to be affirmed.”
See Sapuppo, 739 F.3d at 680. But we would affirm even if the
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 14 of 16

-- 14 of 16 --

22-10680 Opinion of the Court 15
plaintiffs preserved a challenge to the district court’s denial of leave
to amend.
Under Federal Rule of Civil Procedure 15(a), a party may
amend its pleading once as a matter of course, after which it must
obtain the written consent of the opposing party or leave of the
court. Leave to amend should be freely given, except where,
among other things, there was undue delay in seeking leave to
amend or the opposing party would be prejudiced. Foman v. Davis,
371 U.S. 178, 182 (1962); Garfield v. NDC Health Corp., 466 F.3d 1255,
1270 (11th Cir. 2006).
Prior to the motions to dismiss, the magistrate judge granted
plaintiffs leave to amend the amended complaint, but it cautioned
plaintiffs that: (1) it was granting “one final opportunity to file an
amended complaint”; (2) “no further amendments w[ould] be
allowed absent exceptional circumstances”; (3) no extensions for
filing a second amended complaint would be allowed; and (4) that
absent a timely second amended complaint, the case would
proceed on the amended complaint.
Despite these warnings, plaintiffs did not file a second
amended complaint. It was not until plaintiffs objected to the
R&R, well after the time to amend, that they again sought leave to
amend their amended complaint. And in seeking this second
chance to amend, plaintiffs failed to present anything approaching
“exceptional circumstances” warranting further amendment, and
they did not otherwise explain their failure to file a timely second
amended complaint. Given these facts, the district court did not
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 15 of 16

-- 15 of 16 --

16 Opinion of the Court 22-10680
abuse its discretion by declining to give plaintiffs a second chance to
amend the amended complaint.
VII. CONCLUSION
For the reasons above, we dismiss this appeal as to the
plaintiff-appellant Estate of Anderson Childs and affirm the district
court’s dismissal order as to plaintiffs-appellants Jimmy Glenn and
Robin Childs.
DISMISSED IN PART, AFFIRMED IN PART.
USCA11 Case: 22-10680 Document: 76-1 Date Filed: 11/30/2023 Page: 16 of 16

-- 16 of 16 --