Bernard Heriveaux v. Daniel Junior, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11284
Non-Argument Calendar
____________________
BERNARD HERIVEAUX,
Plaintiff-Appellant,
versus
EX-DIRECTOR DANIEL JUNIOR,
Ex-Director, Individual Capacity,
COMMANDER NAEEM PERVAIZ,
Commander, Individual Capacity,
CHIEF ANGELA LAWRENCE,
Chief, Individual Capacity,
MIAMI-DADE COUNTY OF CORRECTIONS AND
REHABILITATION,
MIAMI DADE COUNTY,
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Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cv-21591-FAM
____________________
Before R OSENBAUM , J ILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
Bernard Heriveaux appeals the district court’s order
dismissing with prejudice his third amended complaint. After
careful review, we affirm.
I.
Heriveaux, a Haitian-American man, worked for the Miami-
Dade County Department of Corrections and Rehabilitation for
approximately 20 years. While represented by counsel, he sued
Miami-Dade County as well as Daniel Junior, the former director
of the department; Angela Lawrence, the second in command at
the department; and Naeem Pervaiz, the third in command at the
department. He alleged that he was discriminated against because
of his race, nationality, and age and that the defendants retaliated
against him.
After Junior, Lawrence, and Pervaiz filed motions to dismiss
Heriveaux’s second amended complaint, the district court
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23-11284 Opinion of the Court 3
concluded that the second amended complaint was a shotgun
pleading that failed to comply with Federal Rules of Civil
Procedure 8(a)(2) and 10(b). The court explained that “many of the
[second amended complaint’s] allegations do not specify which
Defendant is responsible for which act,” and as a result “the
pleading fails to give the defendants adequate notice of the claims
against them and the grounds upon which each claim rests.” Doc.
34 at 11 (internal quotation marks omitted).1 After identifying the
deficiencies in the second amended complaint and discussing how
they could be corrected, the court gave Heriveaux an opportunity
to file a third amended complaint.
Heriveaux’s third amended complaint consisted of nearly
400 paragraphs and purported to raise 23 counts against the county,
Junior, Lawrence, and Pervaiz. In Counts One through Five,
Heriveaux purported to bring claims against the county for race
discrimination, national origin discrimination, age discrimination,
retaliation, and a hostile work environment under Title VII.2 In
Counts Six through Fourteen, he purported to bring claims under
1 “Doc.” numbers refer to the district court’s docket entries.
2 The third amended complaint stated that Heriveaux’s age discrimination
claim was brought under Title VII. But Title VII does not prohibit
discrimination based on age. See 42 U.S.C. § 2000e-2 (prohibiting employment
discrimination based on “race, color, religions, sex, or national origin”).
Instead, a different statute, the Age Discrimination in Employment Act,
prohibits employers from discriminating against any employee who is at least
40 years of age because of that employee’s age. See 29 U.S.C. §§ 623(a)(1),
631(a); see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009).
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42 U.S.C. § 1983 against the individual defendants. In each of these
counts, he alleged that Junior, Lawrence, or Pervaiz had deprived
him “of his constitutional right to employment which is protected
by the United States Constitution and Federal Statutes.” See, e.g.,
Doc. 35 at ¶ 197. And in Counts Fifteen through Twenty-Three,
Heriveaux purported to bring claims against Junior, Lawrence, and
Pervaiz under the Florida Civil Rights Act (“FCRA”), Fla. Stat.
§ 760.10(1)(a), (7).
The defendants moved to dismiss the third amended
complaint. The district court granted their motion, concluding that
the third amended complaint was a shotgun pleading that violated
Rules 8(a)(2) and 10(b). The court explained that the third amended
complaint still contained paragraphs “refer[ring] to the Defendants
collectively,” making it difficult “to ascertain which Defendant
engaged in what allegedly wrongful conduct.” Doc. 39 at 4
(alteration adopted) (internal quotation marks omitted). The
district court also set forth an alternative reason for dismissing the
§ 1983 claims in Counts Six through Fourteen, concluding that
Heriveaux failed to state a claim because he did not “identify a
constitutional basis for those claims.” Id. at 6.3
3 The district court also gave an alternative reason for dismissing Heriveaux’s
FCRA claims against the individual defendants, explaining that “individual
liability does not exist under the FCRA.” Doc. 39 at 6 (internal quotation marks
omitted). Because Heriveaux does not challenge on appeal the dismissal of the
FCRA claims, we discuss them no further.
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23-11284 Opinion of the Court 5
Heriveaux then filed a Rule 59(e) motion to alter and amend
the judgment. In the motion, he argued that his third amended
complaint “did not have any characteristics” of a shotgun pleading
“and complied with” the Federal Rules of Civil Procedure. Doc. 40-
1 at 5. The district court denied the motion, stating that it “merely
repeat[ed] arguments” that the court had “already examined and
rejected.” Doc. 41 at 3.4
This is Heriveaux’s appeal.
II.
We review a district court’s dismissal of a complaint as a
shotgun pleading for an abuse of discretion. Weiland v. Palm Beach
Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015).
III.
To state a claim for relief, a pleading must contain “a short
and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement
must “give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
4 In the portion of his initial appellate brief setting forth the issues on appeal,
Heriveaux identified one of the issues on appeal as whether the district court
abused its discretion in denying his Rule 59(e) motion. But he failed to
adequately raise this issue on appeal because this single sentence is the only
time he mentions it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014) (explaining that an appellant fails to adequately raise an issue
on appeal when he makes only “passing references” to it “without advancing
any arguments or citing any authorities”).
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544, 555 (2007) (alteration adopted) (internal quotation marks
omitted). An adequate complaint “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Id. In addition, the complaint must “state its
claims . . . in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.” Fed. R. Civ. P. 10(b).
The purpose of these rules is “to require the pleader to present his
claims discretely and succinctly, so that, his adversary can discern
what he is claiming and frame a responsive pleading” and so that
“the court can determine which facts support which claims and
whether the plaintiff has stated any claims upon which relief can be
granted.” Weiland, 792 F.3d at 1320 (internal quotation marks
omitted).
Complaints that violate these rules are often referred to as
“shotgun pleadings.” Id. A shotgun pleading fails “to give the
defendants adequate notice of the claims against them and the
grounds upon which each claim rests.” Id. at 1323. Shotgun
pleadings “waste scarce judicial resources, inexorably broaden the
scope of discovery, wreak havoc on appellate court dockets, and
undermine the public’s respect for the courts.” Vibe Micro Inc. v.
Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018) (alterations adopted)
(internal quotation marks omitted). Shotgun pleadings include
complaints that: (1) contain “multiple counts where each count
adopts the allegations of all preceding counts”; (2) are “replete with
conclusory, vague, and immaterial facts not obviously connected
to any particular cause of action”; (3) fail to separate into a different
count each cause of action or claim for relief; or (4) assert “multiple
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claims against multiple defendants without specifying which of the
defendants are responsible for which acts or omissions, or which of
the defendants the claim is brought against.” Weiland, 792 F.3d at
1321–23.
A district court has the inherent authority to dismiss a
complaint on shotgun-pleading grounds. Vibe Micro, 878 F.3d at
1295. When a plaintiff files a shotgun pleading, we require a district
court to “give him one chance to replead before dismissing his case
with prejudice” on shotgun-pleading grounds. Id. at 1296. In its
order requiring repleading, the court “should explain how the
offending pleading violates the shotgun pleading rule.” Id.
The district court did not abuse its discretion when it
dismissed Heriveaux’s third amended complaint as a shotgun
pleading. A review of the third amended complaint shows that it
failed to give the defendants adequate notice of the claims against
them and the grounds upon which each claim rested. See Weiland,
792 F.3d at 1323. Among other deficiencies, the third amended
complaint was replete with vague and conclusory allegations. It
also contained allegations that the “Defendants” performed certain
acts or omissions without identifying the particular defendant who
acted or failed to act, making it impossible to identify which
defendant was responsible for which act or omission.
It is true that in the third amended complaint Heriveaux
attempted to separate each cause of action into a separate count.
But a closer look at the pleading shows that he continued to
combine his claims. For example, in Count One, Heriveaux
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purported to bring a Title VII race discrimination claim against the
county. And in Count Five he purported to bring an age
discrimination claim against the county. But in each of these
counts, he alleged that he was ultimately fired not because of his
race or age but for reporting sexual harassment, indicating that in
each of these counts he tried to raise multiple claims. We thus
cannot say that the third amended complaint properly separated
each cause of action into different counts.
Because the third amended complaint still required the
defendants to guess what conduct each count was referring to and
because the district court had already given Heriveaux an
opportunity to fix the deficiencies in his pleadings, we conclude
that the district court did not abuse its discretion when it dismissed
the third amended complaint as a shotgun pleading.
In addition, we affirm the district court’s dismissal of the
§ 1983 claims against the individual defendants, which were set
forth in Counts Six through Fourteen of the third amended
complaint, for another reason. The district court dismissed these
claims not only because the third amended complaint was a
shotgun pleading but also because Heriveaux failed to state a claim
for relief under § 1983.
When a district court’s ruling rests on two or more
independent, alternative grounds, the “appellant must convince us
that every stated ground for the judgment against him is incorrect.”
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014). “When an appellant fails to challenge properly on appeal one
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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.” Id. On appeal,
Heriveaux has challenged only the district court’s determination
that the third amended complaint was a shotgun pleading. He has
not adequately raised any challenge to the district court’s
conclusion that Counts Six through Fourteen failed to state a claim
under § 1983.5 We thus affirm the dismissal of Counts Six through
Fourteen on this alternative ground as well.
IV.
For the above reasons, we affirm.
AFFIRMED.
5 Heriveaux devoted one sentence in his opening brief to challenging the
district court’s ruling that he failed to state a claim under § 1983. But this single,
perfunctory reference to the issue, which was not supported by argument or
citations to authority, is inadequate to raise it on appeal. See Sapuppo, 739 F.3d
at 681.
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