Richard V. Harrison v. Board of Regents of the University System of Georgia, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15393
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-01312-JEC
RICHARD V. HARRISON,
Plaintiff - Appellant,
versus
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,
CHERRYL F. ARNOLD,
individually and in her official capacity as Director of Georgia State
University (“GSU”) Office of Educational Opportunity and TRIO Programs,
EVERETT L. BOYER,
individually and in his official capacity as Project Director of GSU's
Educational Opportunity Center,
DETHRA U. GILES,
Individually and in her official capacity as GSU’s Director of Employee Relations,
DOUGLAS F. COVEY, SR.,
individually and in his official capacity as the GSU’s Vice President for Student
Affairs,
Defendants - Appellees.
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________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(May 17, 2013)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Richard Harrison, proceeding pro se, appeals the district court’s dismissal of
his complaint under Federal Rule of Civil Procedure 41(b) for failure to comply
with a court order.1 After careful review, we affirm.
Harrison sued the Board of Regents of the University System of Georgia and
four individual defendants (collectively, the Defendants) in connection with the
termination of his employment at Georgia State University. His first amended
complaint contained 285 paragraphs of factual allegations. It alleged Title VII
claims of retaliation, hostile work environment, sex and national origin
discrimination; 42 U.S.C. § 1983 claims for violations of the First and Fourteenth
Amendments; and three state-law claims. Each count incorporated by reference all
285 paragraphs of factual allegations. And the complaint contained numerous
conclusory allegations.
1 Harrison also contends that the magistrate judge and district judge should have recused themselves from his case.
But because he points to no facts from which we could conclude that “an objective, fully informed lay observer
would entertain significant doubt about [their] impartiality,” this argument fails. Christo v. Padgett, 223 F.3d 1324,
1333 (11th Cir. 2000).
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The Defendants moved to dismiss for lack of subject-matter jurisdiction and
failure to state a claim. A magistrate judge recommended that some of the claims
be dismissed for reasons not relevant to this appeal and also noted that Harrison’s
complaint was “a typical ‘shotgun’ pleading,” recommending that he “be given
leave to file a substituted amended complaint that complies with the Federal Rules
of Civil Procedure.” Specifically, the magistrate judge instructed Harrison to
“delete all conclusory legal allegations and all legal arguments; eliminate the
‘shotgun’ pleading provisions of the original complaint; plead each separate cause
of action in a separate count; and make a short and plain statement of the factual
allegations supporting each specifically pleaded cause of action.” The district
court adopted these recommendations and warned Harrison that his case would be
dismissed if he failed to submit an appropriate amended complaint.
When Harrison filed his second amended complaint, it was 82 pages long
and contained 231 paragraphs of factual allegations. As before, each of the counts
incorporated by reference all 231 paragraphs. And the complaint still contained
many legal conclusions and arguments. The Defendants moved to dismiss the
second amended complaint under Rule 41(b) for failure to comply with the district
court’s order. The magistrate judge recommended that the district court dismiss
the complaint with prejudice. Harrison objected to the recommendation and
submitted a proposed third amended complaint with his objection. The district
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court adopted the magistrate judge’s recommendation, refused to consider
Harrison’s third amended complaint, and dismissed Harrison’s case.2 Harrison
now appeals.
We review a district court’s dismissal under Rule 41(b) for an abuse of
discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir.
1999). Rule 41(b) allows a defendant to move to dismiss a case for, among other
reasons, the plaintiff’s failure to comply with a court order. Fed. R. Civ. P. 41(b).
“Dismissal . . . is appropriate where there is a clear record of ‘willful’ contempt
and an implicit or explicit finding that lesser sanctions would not suffice.”
Gratton, 178 F.3d at 1374.
The record indicates that Harrison willfully violated the court’s instructions
regarding the filing of his second amended complaint. Despite specific
instructions to the contrary, the second amended complaint contained conclusory
legal allegations, did not allege specific facts in support of the distinct causes of
action, and, at 82 pages and 295 paragraphs in length, could not be characterized as
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Additionally, Harrison’s ability to submit a
2 The district court dismissed some claims with prejudice and some without. But because Harrison argues, and the
Defendants do not dispute, that the relevant statutes of limitations for the claims dismissed without prejudice
prohibit Harrison from refiling, we treat all of the claims as if they were dismissed with prejudice. See Burden v.
Yates, 644 F.2d 503, 505 (5th Cir. Unit B May 1981) (noting that where the statute of limitations bars refiling a
claim dismissed without prejudice, such a dismissal is “tantamount to a dismissal with prejudice”); see also Bonner
v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (adopting as binding precedent all decisions of the
former Fifth Circuit issued on or before September 30, 1981).
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proposed third amended complaint that was less than half the length of the second
and identified specific facts in support of at least some of the counts demonstrates
his failure to do so in the first instance was a willful violation of the court’s order.
The district court was also within its discretion to conclude that lesser
sanctions were not appropriate. Harrison’s second amended complaint was a
classic example of a “shotgun” pleading, which we have condemned as
“wreak[ing] havoc on the judicial system” and “divert[ing] already stretched
judicial resources into disputes that are not structurally prepared to use those
resources efficiently.” Wagner v. First Horizon Pharma. Corp., 464 F.3d 1273,
1279 (11th Cir. 2006) (internal quotation marks omitted). The district court had
already devoted substantial time to the consideration of Harrison’s previous
complaints, and granting Harrison leave to amend a third time would require the
expenditure of even more judicial resources. And the district court had specifically
warned Harrison that his case would be dismissed if the second amended
complaint was another “shotgun” pleading. On these facts, we cannot say that the
district court abused its discretion. See Moon v. Newsome, 863 F.2d 835, 836 (11th
Cir. 1989) (“While dismissal is an extraordinary remedy, dismissal upon disregard
of an order, especially where the litigant has been forewarned, generally is not an
abuse of discretion.”).
For the above reasons, the district court’s dismissal of Harrison’s case is
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AFFIRMED.
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