Tamiko N. Peele v. The United States Department of Justice through its United States Trustee Program, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13173
Non-Argument Calendar
____________________
TAMIKO N. PEELE,
And Tamiko N. Peele,
Individually On Behalf Of Themselves,
Plaintiff-Appellant,
versus
THE UNITED STATES DEPARTMENT OF JUSTICE
THROUGH ITS UNITED STATES TRUSTEE PROGRAM,
REGION 21 AND IT'S OFFICIALS THE CHAPTER 13
TRUSTEE,
ERIK P. KIMBALL,
ROBIN R. WEINER, P.A.,
NANCY J ARGULA, et al.,
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2 Opinion of the Court 22-13173
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cv-14305-AMC
____________________
____________________
No. 22-14096
Non-Argument Calendar
____________________
TAMIKO N. PEELE,
And Tamiko N. Peele,
Individually On Behalf Of Themselves,
Plaintiff-Appellant,
versus
THE UNITED STATES DEPARTMENT OF JUSTICE
THROUGH ITS UNITED STATES TRUSTEE PROGRAM,
REGION 21 AND IT'S OFFICIALS THE CHAPTER 13
TRUSTEE,
ERIK P. KIMBALL,
ROBIN R. WEINER, P.A.,
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22-13173 Opinion of the Court 3
NANCY J ARGULA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cv-14305-AMC
____________________
Before B RASHER , ABUDU , and ANDERSON , Circuit Judges.
PER CURIAM:
In these consolidated appeals, Tamiko Peele appeals, among
other things, the district court’s dismissal of her complaint. Rather
than filing a response, several appellees have moved for summary
affirmance, arguing Peele has abandoned any challenge to the dis-
trict court’s relevant orders, the appeal is frivolous, and the district
court did not err in any respect. We address the parties’ conten-
tions in turn.
I.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the
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4 Opinion of the Court 22-13173
outcome of the case, or where, as is more frequently the case, the
appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1161-62 (5th Cir. 1969). An appeal is frivolous when the party is
not entitled to relief because there is no basis in fact or law to sup-
port their position. See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001).
Section 1442(a)(1) permits the “United States or any agency
thereof” to remove a civil action against it that is commenced in
state court. 28 U.S.C. § 1442(a)(1). After a case is removed, a mo-
tion to remand the case on the basis of any defect, other than lack
of subject matter jurisdiction, must be made within 30 days after
the filing of the notice of removal. 28 U.S.C. § 1447(c). “If at any
time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” Id. “[I]n
any civil action of which the district courts have original jurisdic-
tion, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or contro-
versy. . . .” 28 U.S.C. § 1367(a).
Generally, arguments not raised in the district court cannot
be raised on appeal. Club Madonna Inc. v. City of Miami Beach,
42 F.4th 1231, 1247 n.4 (11th Cir. 2022) (citing Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)). We have
explicitly cautioned litigants that we “cannot allow [p]laintiff[s] to
argue a different case [on appeal] from the case [they] presented to
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22-13173 Opinion of the Court 5
the district court.” Irving v. Mazda Motor Corp., 136 F.3d 764, 769
(11th Cir. 1998).
In addition, an appellant can abandon an issue by failing to
challenge it on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th
Cir. 1994) (applying this rule to a pro se litigant). An appellant can
also abandon a claim where he presents it only in “passing refer-
ences” or “in a perfunctory manner without supporting arguments
and authority.” Sapuppo v. Allstate Floridian Ins., Co., 739 F.3d 678,
681 (11th Cir. 2014). “[S]imply stating that an issue exists,” without
providing reasoning and citation to authority that the appellant re-
lies on, “constitutes abandonment of that issue.” Id. (quoting Singh
v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009)).
In applying the preceding principles, we hold pro se pleadings
to a less stringent standard and will liberally construe them. Camp-
bell v. Air Jam., Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But we
will not “serve as de facto counsel for a party [or] rewrite an other-
wise deficient pleading in order to sustain an action.” Id. at 1168-69.
In addition, all litigants in federal court—pro se or counseled—are
required to comply with the applicable procedural rules. See Albra
v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
We review the district court’s dismissal of a complaint on
shotgun pleading grounds for abuse of discretion. Weiland v. Palm
Beach Cty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). A com-
plaint must contain a short and plain statement of the claim show-
ing that the plaintiff is entitled to relief. Fed. R. Civ. P. 8(a)(2). Fur-
ther, claims should be stated in numbered paragraphs, each limited
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6 Opinion of the Court 22-13173
as far as practicable to a single set of circumstances. Fed. R. Civ. P.
10(b). Rule 10(b) also mandates that each claim founded on a sep-
arate transaction or occurrence be stated in a separate count if do-
ing so would promote clarity. Id.
Shotgun pleadings waste scarce judicial resources, inexora-
bly 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. 2008). The
typical shotgun complaint contains several counts, each one incor-
porating by reference the allegations of its predecessors, leading to
a situation where most of the counts (i.e., all but the first) contain
irrelevant factual allegations and legal conclusions. Strategic Income
Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th
Cir. 2002); Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279
(11th Cir. 2006). We have repeatedly condemned the use of shot-
gun pleadings because those types of complaints do not provide a
short and plain statement of the claim as is required under Rule 8.
Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).
Shotgun pleadings include complaints that: (1) contain mul-
tiple counts where each count adopts the allegations of all preced-
ing counts; (2) are replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of action;
(3) do not separate each cause of action or claim for relief into sep-
arate counts; or (4) assert multiple claims against multiple defend-
ants without specifying which of the defendants are responsible for
which acts or omissions. Weiland, 792 F.3d at 1321–23. All these
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22-13173 Opinion of the Court 7
types of shotgun pleadings are characterized by their failure “to
give the defendants adequate notice of the claims against them and
the grounds upon which each claim rests.” Id. at 1323. A district
court can dismiss a complaint on shotgun pleading grounds under
its “inherent authority to control its docket and ensure the prompt
resolution of lawsuits.” Vibe Micro, 878 F.3d at 1295.
Typically, we review for abuse of discretion a district court
judge’s decision not to recuse himself. United States v. Berger, 375
F.3d 1223, 1227 (11th Cir. 2004). Recusal is governed by two fed-
eral statutes, 28 U.S.C. §§ 144 and 455. Id. Under the former, a
judge must recuse himself when a party to a district court proceed-
ing files a timely and sufficient affidavit that the judge before whom
the matter is pending has a personal bias or prejudice either against
him or in favor of any adverse party. 28 U.S.C. § 144.
Section 455 designates two primary reasons that a judge
must recuse himself. United States v. Patti, 337 F.3d 1317, 1321 (11th
Cir. 2003). Under § 455(a), a judge should recuse himself “when
there is an appearance of impropriety.” Id. The standard of review
for whether a judge should have recused himself under § 455(a) “is
whether an objective, disinterested, lay observer fully informed of
the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality.”
Id. (quotation marks omitted). Recusal decisions under
Ҥ 455(a) are extremely fact driven and must be judged on their
unique facts and circumstances more than by comparison to situa-
tions considered in prior jurisprudence.” In re Moody, 755 F.3d 891,
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8 Opinion of the Court 22-13173
895 (11th Cir. 2014) (quotation marks omitted). The Supreme
Court has stated that “judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994). Indeed, bias “must stem from extrajudicial
sources, unless the judge’s acts demonstrate such pervasive bias
and prejudice that it unfairly prejudices one of the parties.” Berger,
375 F.3d at 1227 (quotation marks omitted). “Any doubts must be
resolved in favor of recusal.” In re Moody, 755 F.3d at 895 (quotation
marks omitted and alteration adopted). Nonetheless, “a judge,
having been assigned to a case, should not recuse himself on un-
supported, irrational, or highly tenuous speculation.” Id. (quota-
tion marks omitted).
Distinctively, § 455(b) lists the several circumstances for
when a judge should recuse himself, including, in relevant part,
“[w]here he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b). Under § 455(b), “a judge should
recuse himself under § 455(b) when any of the specific circum-
stances set forth in that subsection exist, which show the fact of
partiality,” and finding that one of the circumstances exists requires
recusal. Patti, 337 F.3d at 1321-22.
Finally, we review the denial of a motion for reconsideration
for abuse of discretion. See United States v. Simms, 385 F.3d 1347,
1356 (11th Cir. 2004). We have affirmed the denial of a motion for
reconsideration when the defendant did not present newly discov-
ered evidence. See Arthur v. King, 500 F.3d 1335, 1343–44 (11th Cir.
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22-13173 Opinion of the Court 9
2007). We have also affirmed the denial of a motion for reconsid-
eration where the defendant “did nothing but ask the district court
to reexamine an unfavorable ruling.” Jacobs v. Tempur-Pedic Int’l,
Inc., 626 F.3d 1327, 1344 (11th Cir. 2010).
As a threshold matter, notwithstanding Peele’s arguments
to the contrary, the suit was properly removed to federal court and
the district court did not err in implicitly denying Peele’s motions
to remand. The Federal Defendants (the Department of Justice
(“DOJ”), the United States Department of Education (“DOE”), the
United States Social Security Administration (“SSA”), the United
States Postal Service (“USPS”), and United States Bankruptcy
Court Judge Erik P. Kimball) properly removed the case to federal
court, pursuant to 28 U.S.C. § 1442(a)(1) and (3), because the DOJ,
DOE, SSA, and USPS, federal agencies, were named as defendants.
28 U.S.C. § 1442(a)(1). Peele has not identified any defect in the
removal, as contemplated by § 1447(c). 28 U.S.C. § 1447(c). Fur-
ther, Peele has not raised any coherent argument on appeal that
might warrant remand. Id. Finally, the district court properly and
permissibly exercised supplemental jurisdiction over any claims in
the suit which were not the basis of the federal removal. 28 U.S.C.
§ 1367. Therefore, to the extent that Peele’s briefs challenge the
removal of the case to federal court, her argument is meritless.
Here, for both procedural and substantive reasons, sum-
mary affirmance is warranted.
Procedurally, Peele has abandoned her challenges to all of
the district court’s orders by failing to adequately raise them in her
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10 Opinion of the Court 22-13173
initial brief. Peele does not argue that her complaint was not a
shotgun-pleading and has made only passing references to the dis-
trict court’s order denying recusal and denying her motion to reo-
pen the case. Irwin, 40 F.3d at 347 n.1; Sapuppo, 739 F.3d at 681;
Singh, 561 F.3d at 1278. While we liberally construe pro se plead-
ings, we do not “serve as de facto counsel for a party [or] rewrite an
otherwise deficient pleading in order to sustain an action.” Camp-
bell, 760 F.3d at 1168-69. And while Peele correctly asserts that she
has proceeded pro se throughout this litigation, we have repeatedly
found that pro se litigants must comply with applicable procedural
rules. Albra, 490 F.3d at 829. For this reason alone, there is “no
substantial question as to the outcome of the case,” so we could
grant the motions for summary affirmance and affirm. Groendyke
Transp., 406 F.2d at 1161-62.
But even assuming Peele’s lengthy filings have preserved a
challenge to the district court’s orders, the district court did not err.
First, the district court did not abuse its discretion in dismiss-
ing Peele’s complaint as a shotgun pleading. See Weiland, 792 F.3d
at 1321-23. Peele’s complaint is a quintessential shotgun pleading
because it contains several counts, each one incorporating by ref-
erence the allegations of its predecessors, leading to a situation
where most of the counts contained irrelevant factual allegations
and legal conclusions. Strategic Income Fund, 305 F.3d at 1295;
Weiland, 792 F.3d at 1321–23. Further, the count headings and al-
legations make it difficult to ascertain which defendant is responsi-
ble for which act or omission, since Peele frequently asserted
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22-13173 Opinion of the Court 11
multiple claims against multiple defendants (or all defendants)
without specifying which defendants were responsible for which
acts or omissions, creating uncertainty regarding to whom each al-
legation referred. See Weiland, 792 F.3d at 1321-23. Because the
complaint was a shotgun pleading, the district court properly dis-
missed it without prejudice and granted Peele leave to replead her
complaint. Vibe Micro, 878 F.3d at 1295.
Second, the district court did not abuse its discretion in deny-
ing the motion to recuse. Berger, 375 F.3d at 1227. First, it was
unclear on what grounds Peele requested recusal, and there is
nothing, in the record or on appeal, that might show “an appear-
ance of impropriety” such that recusal would have been proper.
Patti, 337 F.3d at 1321; 28 U.S.C. § 455(a). Instead, it appears that
Peele was simply seeking recusal based on the district court’s prior
judicial rulings, which are “almost never” a valid basis for recusal,
Liteky, 510 U.S. at 555. Further, recusal was not proper under
§ 445(b) or § 144 either, because there is nothing in the record that
might suggest that the district court judge had personal bias or prej-
udice concerning a party or knowledge of evidentiary facts.
28 U.S.C. §§ 144, 455(b); Patti, 337 F.3d at 1321-22. For these rea-
sons, the district court did not abuse its discretion in denying the
motion to recuse.
Third, the district court did not abuse its discretion in deny-
ing the motion to reopen the case, because the motion was frivo-
lous and failed to provide any basis upon which the district court
could give relief. Bilal, 251 F.3d at 1349. Much of the relief she
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12 Opinion of the Court 22-13173
requested in that motion, moreover, appears to have been for
things that the district court lacked jurisdiction to grant her in any
event, because Peele had already appealed. See United States v.
Diveroli, 729 F.3d 1339, 1341-44 (11th Cir. 2013) (explaining that the
filing of a notice of appeal normally divests the district court of au-
thority to proceed further with respect to any matters involved in
the appeal, except in aid of the appeal). Denial of this motion, as
well, was not an abuse of discretion.
For these reasons, the appellees’ position is “clearly right as
a matter of law so that there can be no substantial question as to
the outcome of the case,” so we GRANT the motions for summary
affirmance. Groendyke Transp., Inc., 406 F.2d at 1161-62.
AFFIRMED.
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