Elias Makere v. E. Gary Early

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13613
Non-Argument Calendar
____________________
ELIAS MAKERE,
FSA MAAA,
Plaintiff-Appellant,
versus
E. GARY EARLY,
Administrative Law Judge,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 1 of 12

-- 1 of 12 --

2 Opinion of the Court 22-13613
D.C. Docket No. 4:21-cv-00096-AW-HTC
____________________
Before R OSENBAUM , J ILL PRYOR , and B RANCH , Circuit Judges.
PER CURIAM:
Elias Makere, proceeding pro se, appeals the district court’s
dismissal of his second amended civil complaint against Florida
administrative law judge Edward Gary Early on the grounds that
Early was entitled to absolute judicial immunity. Makere argues
that the district court erred for several reasons. On the other hand,
Judge Early, through counsel, moves for sanctions against Makere
under Federal Rule of Appellate Procedure 38 for pursuing a
frivolous appeal. After review, we affirm the dismissal of the
complaint and we deny the motion for sanctions.
I. Background
This is the second time this case appears before this Court.
Previously, Makere, proceeding pro se, filed a civil complaint
against Judge Early, which the district court sua sponte dismissed on
judicial immunity grounds, prior to service on Judge Early and
without giving Makere notice of its intent to dismiss. See Makere v.
Early, No. 21-11901, 2021 WL 6143553, at *1–2 (11th Cir. Dec. 30,
2021). We vacated and remanded, concluding that the district
court erred in sua sponte dismissing the complaint because (1) the
preliminary screening provisions of 28 U.S.C. § 1915(e) did not
apply as Makere had paid the filing fee, and (2) a dismissal under
Federal Rule of Civil Procedure 12(b)(6) was improper because
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 2 of 12

-- 2 of 12 --

22-13613 Opinion of the Court 3
Judge Early had not filed an answer and the district court did not
give Makere notice of its intent to dismiss and an opportunity to
respond. Id. at *2. Nevertheless, we noted that “[n]othing . . .
preclude[d] the district court from sua sponte dismissing the case on
remand if it determine[d] that the complaint fail[ed] to state a claim
provided that . . . the court provide[d] Makere with notice of its
intent to dismiss and an opportunity to respond.” Id. at *2 n.6.
On remand, Makere filed a second amended complaint
raising various claims under 42 U.S.C. § 1983 and a claim for
“deprivation of rights” under 42 U.S.C. § 1985. Specifically, Makere
alleged that Judge Early, while presiding over Makere’s
employment discrimination case, committed several unlawful
actions, including: hiding evidence from Makere by omitting a
page from a transcript Makere requested; committing perjury by
making false statements concerning Makere’s claims in the court’s
recommended order; and bribing state and federal officials by
allegedly giving the Florida Commission of Human Resources and
other magistrate judges “something of value” in exchange for
violations of Makere’s rights through adverse rulings. In terms of
relief, he sought various damages as well as declaratory and
injunctive relief.
Judge Early filed a motion to dismiss, arguing in relevant
part, that the complaint should be dismissed under Rule 12(b)(6)
because he was entitled to judicial immunity. Makere opposed the
motion to dismiss.
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 3 of 12

-- 3 of 12 --

4 Opinion of the Court 22-13613
Meanwhile, Makere moved for leave to file a third amended
complaint. He alleged that the two magistrate judges that issued
rulings in this federal proceeding and Judge Early’s counsel had all
performed acts that “evidenced their contributions to Defendant
Early’s . . . conspiracy,” and he needed to amend his complaint to
include this new evidence and to add those individuals as co-
conspirators. Makere attached to his motion a proposed amended
complaint consisting of approximately 101 pages and including 8
new defendants.
A magistrate judge issued a report and recommendation
(“R&R”), recommending that Makere’s request for leave to amend
be denied as futile because (1) the complaint violated the local rules
for the Northern District of Florida; (2) it violated Federal Rule of
Civil Procedure 8; (3) it sought to improperly join defendants in
violation of Federal Rule of Civil Procedure 20; and (4) any
amendment would cause unjust delay in light of Judge Early’s
pending motion to dismiss. The district court adopted the R&R.
However, prior to the district court’s ruling on Makere’s
motion to file a third amended complaint, Makere filed a motion
for leave to file a fourth amended complaint. In this motion he
sought to add four defendants and complained of actions by other
individuals and entities associated with his prior employment
discrimination claim in the Florida courts. The district court
denied Makere’s request, concluding that the proposed amended
complaint was an impermissible shotgun pleading and failed to
state a claim for relief.
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 4 of 12

-- 4 of 12 --

22-13613 Opinion of the Court 5
With regard to Judge Early’s motion to dismiss, a magistrate
judge issued an R&R recommending dismissal of the complaint
because Makere’s claims were barred by absolute judicial
immunity.1 Makere objected to the R&R. The district court
overruled Makere’s objections and adopted the R&R. Makere
timely appealed.
II. Discussion
Makere makes several arguments on appeal, but only two of
them are preserved for review.2 First, he asserts that the district
court erred in dismissing the complaint “without allowing [his]
1 Both the magistrate judge and the district court noted that, following adverse
rulings, Makere has filed suit against various judges that have presided over
his cases.
2 In terms of his unpreserved arguments, Makere argues that the magistrate
judge below (1) deprived him of his constitutional right to equal protection by
denying his request to file documents electronically (Argument V), and
(2) violated his constitutional right to due process and “fundamental fairness”
in relation to the docketing of and ruling on Makere’s motion to take judicial
notice (Argument VI). However, we lack jurisdiction to review these rulings
because Makere did not appeal them to the district court. United States v.
Renfro, 620 F.2d 497, 500 (5th Cir. 1980) (stating that “[a]ppeals from the
magistrate's ruling must be to the district court,” and that we lack jurisdiction
to hear appeals “directly from federal magistrates”); United States v. Schultz, 565
F.3d 1353, 1359-62 (11th Cir. 2009) (applying Renfro where a magistrate judge
issued an order on a non-dispositive issue, a party failed to object to the order,
and the same party subsequently appealed from the final judgment); Smith v.
Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007) (“We have
concluded that, where a party fails to timely challenge a magistrate’s
nondispositive order before the district court, the party waived his right to
appeal those orders in this Court.”).
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 5 of 12

-- 5 of 12 --

6 Opinion of the Court 22-13613
requested amendment[s]” (Argument I). Second, he argues that
Judge Early is not entitled to judicial immunity in relation to
Makere’s claim that Judge Early hid evidence and committed
perjury because those are not judicial acts and that the district court
erred in dismissing his request for declaratory relief because “no
official is immune” from such claims (Arguments III and IV).3 We
disagree for the reasons set forth below.
A. Whether the district court erred in dismissing the
complaint without permitting Makere to amend
We review a district court’s denial of a motion to file an
amended complaint for an abuse of discretion. Green Leaf Nursery
v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1300 (11th Cir.
2003). Federal Rule of Civil Procedure 15 provides that district
courts “should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). Additionally, “[p]ro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003) (quotations omitted). Where a more carefully
drafted complaint might state a claim, the district court abuses its
discretion if it does not provide a pro se plaintiff at least one
opportunity to amend before the court dismisses with prejudice.
3 Makere also asserts that the district court erred in dismissing his complaint
because his case was an issue of first impression, and given that there “there is
no case precedent” governing a judge’s destruction of evidence or perjury,
“there [was] no basis for dismissal.” We will consider this argument in
conjunction with the argument that Judge Early was not entitled to judicial
immunity.
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 6 of 12

-- 6 of 12 --

22-13613 Opinion of the Court 7
See Woldeab v. DeKalb Cnty. Bd. of Educ., 885 F.3d 1289, 1291–92
(11th Cir. 2018). In deciding whether to grant leave to amend, the
court should consider factors such as “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the amendment,
[and] futility of amendment.” Equity Lifestyle Properties, Inc. v. Fla.
Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1241 (11th Cir. 2009)
(alteration in original) (quotations omitted).
Here, Makere filed two amended complaints, which the
court permitted. Once Makere filed those amended complaints,
nothing compelled the district court to continue to offer Makere
additional opportunities to further amend his complaint. See
Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).
Furthermore, as the district court explained, the proposed third
and fourth amended complaints suffered from various defects and
permitting amendment would have caused undue delay and
prejudice. Accordingly, we conclude that the district court did not
abuse its discretion in denying Makere’s requests for leave to
amend.
B. Whether the district court erred in dismissing the second
amended complaint on the basis of judicial immunity
We review a district court’s grant of judicial immunity and
grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim
de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Smith v.
Shook, 237 F.3d 1322, 1325 (11th Cir. 2001). In so doing, we accept
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 7 of 12

-- 7 of 12 --

8 Opinion of the Court 22-13613
the complaint’s allegations as true and construe them in a light
most favorable to the plaintiff. Hill, 321 F.3d at 1335.
“Judges are entitled to absolute judicial immunity from
damages for those acts taken while they are acting in their judicial
capacity unless they acted in the clear absence of all jurisdiction.”
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (quotations
omitted). Importantly, “[l]ike other forms of official immunity,
judicial immunity is an immunity from suit, not just from ultimate
assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991).
Judicial immunity is absolute—it “applies even when the judge’s
acts are in error, malicious, or were in excess of his or her
jurisdiction.” Bolin, 225 F.3d at 1239. And it is well-established that
this immunity applies to state administrative law judges like Judge
Early. See Smith, 237 F.3d at 1325. As we have explained,
[w]hether a judge’s actions were made while acting in
his judicial capacity depends on whether: (1) the act
complained of constituted a normal judicial function;
(2) the events occurred in the judge’s chambers or in
open court; (3) the controversy involved a case
pending before the judge; and (4) the confrontation
arose immediately out of a visit to the judge in his
judicial capacity.
Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005).
Additionally, the immunity generally extends to claims for
declaratory and injunctive relief. Under § 1983, such relief is
available only if the judicial officer violated a declaratory decree or
declaratory relief is otherwise unavailable and there is an “absence
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 8 of 12

-- 8 of 12 --

22-13613 Opinion of the Court 9
of an adequate remedy at law.” See 42 U.S.C. § 1983; Bolin, 225 F.3d
at 1242; Sibley, 437 F.3d at 1073. A state appellate process is an
adequate remedy at law. Sibley, 437 F.3d at 1073–74.
Here, Makere argues that the district court erred in granting
Judge Early’s motion to dismiss on Makere’s requests for
declaratory relief and his claims that Judge Early (1) hid evidence
from Makere by omitting a page from a transcript Makere
requested, and (2) committed perjury by misstating or otherwise
omitting Makere’s claims in Judge Early’s order concerning
Makere’s employment discrimination case.4 However, these
allegations of misconduct relate to actions that clearly fall within
Judge Early’s judicial role and judicial immunity applies. Sibley, 437
F.3d at 1070. More importantly, this immunity applies even if, as
Makere argues, “the judge’s acts are in error, malicious, or were in
excess of his or her jurisdiction.” Bolin, 225 F.3d at 1239.
4 Relatedly, Makere argues that the R&R on the motion to dismiss below was
“based on a false premise” because the magistrate judge mischaracterized his
allegations against Judge Early (Argument II). Specifically, in the R&R, the
magistrate judge stated that Makere “complains about Judge Early’s order
directing [him] to cease a certain line of questioning.” Makere asserts that this
was a “false premise” because he complained of Judge Early hiding evidence
not the cessation order. When the R&R is considered in its entirety, there was
no error. The allegation that Judge Early hid evidence was related to Makere’s
request for a transcript in the context of his request “for a redress of the
cessation order.” Judge Early provided Makere with a transcript, but it was
allegedly missing a page, and it is this missing page that Makere accuses Judge
Early of hiding from him. The magistrate judge detailed this information in
the R&R. Thus, it is clear that the magistrate judge understood and properly
considered the crux of Makere’s claim. Accordingly, there was no error.
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 9 of 12

-- 9 of 12 --

10 Opinion of the Court 22-13613
Furthermore, declaratory and injunctive relief were improper,
because there is no suggestion that Judge Early violated a
declaratory decree, and because Makere had an adequate remedy
at law through the state appeals process. See Bolin, 225 F.3d at 1242;
Sibley, 437 F.3d at 1074. Accordingly, the district court properly
concluded that Judge Early had absolute judicial immunity from
Makere’s claims for damages, declaratory, and injunctive relief.
Accordingly, for the reasons set forth above, we affirm the
district court’s dismissal, and we turn to the Appellee’s motion for
sanctions.
III. Motion for Sanctions
Judge Early’s counsel moves for sanctions under Rule 38 of
the Federal Rules of Appellate Procedure against Makere on the
ground that the appeal was frivolous and not taken in good faith.
Makere did not respond to the motion. After review, we deny the
motion for sanctions at this time.
Rule 38 provides that “[i]f a court of appeals determines that
an appeal is frivolous, it may, after a separately filed motion or
notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appellee.”
Fed. R. App. P. 38. “Rule 38 sanctions have been imposed against
appellants who raise clearly frivolous claims in the face of
established law and clear facts.” Farese v. Scherer, 342 F.3d 1223,
1232 (11th Cir. 2003) (quotations omitted); see also Parker v. Am.
Traffic Solutions, Inc., 835 F.3d 1363, 1371 (11th Cir. 2016) (“For
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 10 of 12

-- 10 of 12 --

22-13613 Opinion of the Court 11
purposes of Rule 38, a claim is clearly frivolous if it is utterly devoid
of merit.” (quotations omitted)).
However, generally, where, as here, the appellant is pro se,
we have declined requests to impose sanctions under Rule 38. See
Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993); Hyslep v. United
States, 765 F.2d 1083, 1084–85 (11th Cir. 1985). Nevertheless, we
have made exceptions and imposed sanctions against pro se
appellants who were explicitly warned by the district court that
their claims were frivolous. See, e.g., United States v. Morse, 532 F.3d
1130, 1132–33 (11th Cir. 2008) (imposing sanctions on a pro se
appellant who had been warned in the district court that his claims
were “utterly without merit”); Pollard v. Comm’r, 816 F.2d 603, 604–
05 (11th Cir. 1987) (imposing sanctions on pro se appellant who
brought claims that were determined to be frivolous in a previous
suit, and for which appellant had been sanctioned); King v. United
States, 789 F.2d 883, 884 (11th Cir.1986) (imposing sanctions on a
pro se litigant where the district court had pointed out to the litigant
that his claim was directly foreclosed by an unambiguous statute
and prior precedent and where identical arguments as those made
by the Appellant had been repeatedly declared frivolous by this
Court); Ricket v. United States, 773 F.2d 1214, 1216 (11th Cir. 1985)
(imposing sanctions on pro se appellant where “[t]he legal theories
advanced by [the appellant] had been rejected uniformly [by the
courts] as frivolous” and where the district court had warned the
appellant that his suit was frivolous).
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 11 of 12

-- 11 of 12 --

12 Opinion of the Court 22-13613
Although this appeal is frivolous, none of the special
circumstances for awarding sanctions against a pro se party exist in
this case at this time. There is no indication that Makere is an
attorney and he was not previously warned that sanctions would
be imposed for frivolous litigation. Thus, because of Makere’s pro
se status, we exercise the discretion afforded us by Rule 38 and
decline to impose sanctions at this time. See Woods, 3 F.3d at 404
(“There can be no doubt that this is a frivolous appeal and we
would not hesitate to order sanctions if appellant had been
represented by counsel. However, since this suit was filed pro se,
we conclude that sanctions would be inappropriate.”). However,
we caution Makere that any future challenges based on this same
set of facts will be deemed frivolous and subject to sanctions.
AFFIRMED. MOTION FOR SANCTIONS DENIED.
USCA11 Case: 22-13613 Document: 46-1 Date Filed: 10/30/2023 Page: 12 of 12

-- 12 of 12 --