Marcus Johnson v. Bottling Group, LLC

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13127
Non-Argument Calendar
____________________
MARCUS JOHNSON,
Plaintiff-Appellant,
versus
BOTTLING GROUP, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-01135-JSM-TGW
____________________
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2 Opinion of the Court 22-13127
Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Marcus Johnson, proceeding pro se, appeals the district
court’s order granting summary judgment in favor of Bottling
Group, LLC in his action for race discrimination and retaliation un-
der Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., and the Florida Civil Rights Act, Fla. Stat. § 760.01, et seq. John-
son argues that Bottling Group failed to protect him from disparate
treatment and racially-targeted incidents and only gave him unrea-
sonable options to continue employment, resulting in his construc-
tive discharge.
We review the district court’s grant of summary judgment
de novo. Seamon v. Remington Arms Co., 813 F.3d 983, 987-88 (11th
Cir. 2016). Summary judgment is warranted where the movant
shows that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a).
While pro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will be liberally construed,
we may not “serve as de facto counsel for a party [or] rewrite an
otherwise deficient pleading in order to sustain an action.” Camp-
bell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014). “[I]ssues
not briefed on appeal by a pro se litigant are deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). An appellant
fails to adequately brief a claim when he does not “plainly and
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22-13127 Opinion of the Court 3
prominently raise it,” such as by making only passing references to
the court’s holding without advancing any arguments or citing any
authorities to establish that they were error. Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotation marks
omitted); but see D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1226
n.3 (11th Cir. 2005) (concluding that a pro se appellant had not aban-
doned an issue, even though the claim was inartfully raised in the
opening brief, because the appellant asserted “at least twice in her
initial brief that she suffered from a disability, which was the basis
for her firing” and clarified in her reply brief that she did not intend
to waive the claim). We may exercise our discretion to consider a
forfeited issue if: “(1) the issue involves a pure question of law and
refusal to consider it would result in a miscarriage of justice; (2) the
party lacked an opportunity to raise the issue at the district court
level; (3) the interest of substantial justice is at stake; (4) the proper
resolution is beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public concern.” United
States v. Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc), cert. denied,
143 S. Ct. 95 (2022).
Here, Johnson has abandoned any purported challenge to
the district court’s grant of summary judgment. Even when con-
struing his brief liberally, Johnson failed to challenge any of the five
bases on which the district court granted summary judgment or
identify any error whatsoever. See Air Jam. Ltd., 760 F.3d at 1168
69. The only basis that Johnson proffers any argument for is his
allegation that he was in fact constructively discharged; but, fatally,
Johnson does not challenge the district court’s finding that he
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4 Opinion of the Court 22-13127
forfeited constructive discharge by raising it for the first time in re-
sponse to Bottling Group’s motion for summary judgment. Rather
than argue that any of the other bases were improperly found,
Johnson simply repeats his theory of the case—without legal or rec-
ord citation—and argues—again without citation—that he was
wronged by Bottling Group, without mentioning the specific
grounds for the district court’s ruling he purports to challenge,
aside from the issue of constructive discharge which the court con-
cluded was forfeited. Thus, Johnson has abandoned any challenge
to the district court’s grant of summary judgment. See Timson, 518
F.3d at 874; Sapuppo, 739 F.3d at 681.
This Court may exercise its discretion to consider forfeited
issues, as identified in Campbell, but the exceptions named in that
case do not apply to Johnson’s appeal. See Campbell, 26 F.4th at 873.
AFFIRMED.
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