Reshawn Armstrong v. U.S. Attorney General, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10323
Non-Argument Calendar
____________________
RESHAWN ARMSTRONG,
Plaintiff-Appellant,
versus
U.S. ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS,
UNITED STATES OF AMERICA,
Defendants-Appellees.
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2 Opinion of the Court 23-10323
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:21-cv-01678-LSC
____________________
____________________
No. 23-11367
Non-Argument Calendar
____________________
RESHAWN ARMSTRONG,
Plaintiff-Appellant,
versus
U.S. ATTORNEY GENERAL,
UNITED STATES OF AMERICA,
DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF PRISONS,
Defendants-Appellees.
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23-10323 Opinion of the Court 3
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:23-cv-00086-LSC
____________________
Before J ORDAN, BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
Reshawn Armstrong appeals the dismissal of her complaints
against the U.S. Attorney General, the U.S. Department of Justice,
the Federal Bureau of Prisons, and the United States. She argues
that (1) the district court erred in denying a motion she made to
correct a clerical error and to be given extra time to respond to the
defendants’ request for an extension; (2) the district court erred in
dismissing her complaints as shotgun pleadings and denying her
motions for reconsideration; and (3) the district court judge should
have recused himself from her cases.
I
We review decisions on both motions for extensions of time
and requests for continuances for abuse of discretion. See Advanced
Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1325 (11th Cir. 1996);
Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987). “An abuse
of discretion occurs when a district court commits a clear error of
judgment, fails to follow the proper legal standard or process for
making a determination, or relies on clearly erroneous findings of
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4 Opinion of the Court 23-10323
fact.” Yellow Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159, 1163
(11th Cir. 2017).
Federal Rule of Civil Procedure 7 specifies the forms of
pleadings and requires that a request for court order must be made
by motion. Rule 7.1 explains who must file disclosure statements
and what must be contained therein. Neither contains a deadline
to respond to motions. Though there are many 21-day deadlines
in the Rules of Civil Procedure, none relate to general motions for
an extension or a general deadline for responding to all motions.
See Fed. R. Civ. P. 11(c)(2), 12(a)(1), 12(f)(2), 15(a)(1), 26(d)(2)(A),
26(f)(1), 26(f)(4)(A), 27(a)(2), 53(f)(2), 71.1(d)(2)(A)(v), 71.1(e)(2),
81(c)(2).
A court may correct clerical mistakes “on motion or on its
own, with or without notice.” Fed. R. Civ. P. 60(a). Any errors
that do not affect the substantial rights of a party, i.e., errors that
are harmless, must be disregarded. See 28 U.S.C. § 2111; Fed. R.
Civ. P. 61; Stansell v. Revolutionary Armed Forces of Colombia, 45 F.4th
1340, 1349 (11th Cir. 2022).
Ms. Armstrong has not demonstrated any reversible error
with regard to her motion to correct the initial order and to be
given time to respond to the defendants’ motion for an extension
to answer her complaint. First, even assuming the district court
erred in denying her motion insofar as it requested a correction,
such error was harmless as the district court did correct the name
on its initial order. Second, the district court did not abuse its dis-
cretion in denying her request to be given more time to respond.
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23-10323 Opinion of the Court 5
Contrary to Ms. Armstrong’s claimed allowance of 21 days to re-
spond, the district court was not required to allow any specific time
for her to respond to the defendants’ request for an extension. She
cites to Federal Rule of Civil Procedure 7(d), but Rule 7 does not
have a subsection (d). She also cites to Rule 7.1, but it deals with
disclosure statements. In any event, she has not shown prejudice
resulting from the district court’s failure to allow her to respond to
the defendants’ motion for extension of time to answer the com-
plaint.1
II
“We review a dismissal on Rule 8 shotgun pleading grounds
for an abuse of discretion.” Vibe Micro, Inc. v. Shabanets, 878 F.3d
1291, 1294 (11th Cir. 2018). Denial of motions for reconsideration
are also reviewed for abuse of discretion. See Fla. Ass’n of Rehab.
Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d
1208, 1216 (11th Cir. 2000).
District courts have an inherent power to control their
docket. See Vibe, 878 F.3d at 1295. This includes dealing with shot-
gun complaints. Id. These complaints “waste scarce judicial re-
sources, inexorably broaden[] the scope of discovery, wreak havoc
on appellate court dockets, and undermine[] the public’s respect for
the courts.” Id. (quotation omitted). There are four main types of
shotgun complaints: (1) a complaint where each count realleges
1 Reading Ms. Armstrong’s brief liberally, we have looked at the Local Rules
of the Northern District of Alabama, but they do not contain any rules setting
out when responses to motions are due.
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previous allegations so that “the last count [is] a combination of the
entire complaint” and includes large amounts of irrelevant infor-
mation; (2) a complaint which is “replete with conclusory, vague,
and immaterial facts”; (3) a complaint which fails to separate each
claim for relief into a different count; and (4) a complaint which
alleges multiple claims against multiple defendants in each count,
without identifying which defendants are responsible for which
claims. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313,
1321–23 (11th Cir. 2015).
If a court identifies that a complaint is a shotgun complaint,
it generally must give the litigant one chance to replead, with in-
structions on the deficiencies. See Vibe, 878 F.3d at 1296. The
chance to replead may be a dismissal without prejudice and, be-
cause “[w]hat matters is function, not form,” the instructional re-
quirement can be satisfied by a motion to dismiss that sufficiently
explains the defects of the complaint. See Jackson v. Bank of Am.,
N.A., 898 F.3d 1348, 1358 (11th Cir. 2018). If the amended com-
plaint does not remedy the defects and the plaintiff does not move
to amend, then the court may dismiss the complaint with preju-
dice. See Vibe, 878 F.3d at 1296.
“[P]ro se pleadings are held to a less strict standard than
pleadings filed by lawyers and thus are construed liberally.” Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). But we have held
that “failure to raise an issue in an initial brief on direct appeal
should be treated as a forfeiture of the issue.” United States v. Camp-
bell, 26 F.4th 860, 873 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95
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23-10323 Opinion of the Court 7
(2022); see also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (“We have long held that an appellant abandons a
claim when he either makes only passing references to it or raises
it in a perfunctory manner without supporting arguments and au-
thority.”). Pro se litigants are not immune to the rules of forfeiture.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
Even assuming that Ms. Armstrong did not forfeit the dis-
missal of her complaints by misconstruing the bases on which the
district ruled, the district court did not abuse its discretion in dis-
missing them and denying her motions for reconsideration.
First, Ms. Armstrong’s amended complaint in her action in-
itiated in 2021 is a shotgun complaint because it fails to identify
which defendants are responsible for which claims. Thus, the dis-
trict court did not err in dismissing it without prejudice and deny-
ing reconsideration.
Second, Ms. Armstrong’s complaint in her 2023 action suf-
fers from precisely the same defects, none of which are remedied
by her reorganization. The requirement that she be given a chance
to replead with instructions on the deficiencies is satisfied by the
prior dismissal without prejudice of a nearly identical complaint,
explaining the deficiencies thereof. On this basis, the district court
did not err in dismissing her complaint with prejudice and denying
reconsideration.
III
We generally review a district judge’s refusal to recuse for
abuse of discretion. See Murray v. Scott, 253 F.3d 1308, 1310 (11th
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Cir. 2001). If a plaintiff does not move to recuse the judge below,
an argument on appeal that the judge should have recused them-
selves sua sponte is reviewed for plain error. See Hamm v. Members
of Bd. of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983).
Plain error occurs where there is error, the error is plain, and a
party’s substantial rights have been affected. See Yates v. Pinellas
Hematology & Oncology, P.A., 21 F.4th 1288, 1297 (11th Cir. 2021).
A district judge is required to recuse himself “in any proceed-
ing in which his impartiality might reasonably be questioned.” 28
U.S.C. § 455(a). Similarly, a party may seek recusal of a district
judge by filing an affidavit stating that the judge is biased or preju-
diced and stating the grounds for believing in such bias. See 28
U.S.C. § 144.2
In either case, the bias “must stem from extrajudicial sources
and must be focused against a party to the proceeding.” Hamm, 708
F.2d at 651; see also Liteky v. United States, 510 U.S. 540, 548–56
(1994). An exception exists “if a judge’s remarks in a judicial con-
text demonstrate such pervasive bias and prejudice that it consti-
tutes bias against a party.” Hamm, 708 F.2d at 651; see also Liteky,
510 U.S. at 551. Neither the “judge’s comments on lack of evi-
dence, rulings adverse to a party, nor friction between the court
2 The Code of Conduct for United States Judges similarly requires impartiality
and disqualification whenever a “judge’s impartiality might reasonably be
questioned.” Judicial Conference of the United States, Code of Conduct for
United States Judges Canon 2A, 3, 3C(1) (2019).
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23-10323 Opinion of the Court 9
and counsel constitute pervasive bias.” Hamm, 708 F.2d at 651; see
also Liteky, 510 U.S. at 555. Due process may also require recusal
where the judge has a pecuniary interest in the outcome or where
“the probability of actual bias . . . is too high to be constitutionally
tolerable.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 876–77
(2009).
Here the district judge neither abused his discretion in not
recusing himself in Ms. Armstrong’s 2021 case, nor plainly erred in
failing to do so in her 2023 case. Most of the bases Ms. Armstrong
cited for recusal were merely adverse rulings, none of which
showed “pervasive bias and prejudice.” Hamm, 708 F.2d at 651.
The rest were apparently baseless allegations of misconduct unsup-
ported by any evidence in the record.
IV
We affirm the dismissal of Ms. Armstrong’s complaints.
AFFIRMED.
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