Glenn Francis v. Thomas Scarantino, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10886
Non-Argument Calendar
____________________
GLENN FRANCIS,
Plaintiff-Appellant,
versus
THOMAS SCARANTINO,
Warden,
LORI D. PALMIERI,
Court Appointed Counsel,
MARK J. O'BRIEN,
Court Appointed Counsel,
AMANDA ARNOLD SANSONE,
Judge at Bond Hearing,
SEAN P. FLYNN,
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2 Opinion of the Court 22-10886
Judge at Competency Hearing, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02579-MSS-AAS
____________________
Before N EWSOM, G RANT, and J ULIE C ARNES , Circuit Judges.
PER CURIAM:
Plaintiff in this pro se action filed suit against numerous offi-
cials—including judges, prosecutors, court-appointed attorneys, an
FBI agent, and wardens of facilities where he was detained at vari-
ous times—involved in his criminal investigation and prosecution
on wire and mail fraud charges. Plaintiff filed a motion to proceed
in forma pauperis, which the district court granted. The court sub-
sequently dismissed Plaintiff’s third amended complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) based on its determination that the
claims asserted in the complaint are facially meritless. After a care-
ful review of the record and the appellate briefing submitted by
Plaintiff, we AFFIRM. As there is no basis for granting Plaintiff’s
pending motions in this Court for entry of a default judgment and
to amend his complaint, we DENY those motions.
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22-10886 Opinion of the Court 3
BACKGROUND
Plaintiff’s claims in this action arise from his investigation,
prosecution, and detention pending trial on wire and mail fraud
charges. Briefly, Plaintiff was indicted in January 2019 following an
investigation by FBI agent Tina Repp.1 Plaintiff’s criminal case was
assigned to Middle District of Florida Judge Steven Merryday. As-
sistant United States Attorney Rachel Jones, supervised by Florida
United States Attorney Maria Lopez, was responsible for prosecut-
ing the case. Attorney Lori Palmieri initially was appointed as
Plaintiff’s defense counsel, but she was fired and replaced by attor-
ney Mark O’Brien, who at some point was joined in the case by
attorney Scott Robbins.
After Magistrate Judge Amanda Sansone denied Plaintiff
bond, he was held at the Pinellas County detention facility under
Warden Bob Gualtieri from January 2019 to March 2020, at Butner
Federal Medical Center (“Butner”) under Warden Thomas Scaran-
tino from March to August 2020 and again from January to April
2021, and at the Citrus County detention facility (“Citrus”) under
Warden Mike Prendergast from August 2020 to January 2021.
Plaintiff was transferred to Butner after his attorney O’Brien filed a
motion for a competency hearing in October 2019, which Magis-
trate Judge Sean Flynn granted. Based on the results of a psychiat-
ric evaluation and Plaintiff’s testimony at the hearing, Judge Flynn
1 We take the background facts of this appeal from Plaintiff’s third amended
complaint, the operative complaint in the action.
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4 Opinion of the Court 22-10886
determined Plaintiff was incompetent, and referred him to Butner
for further evaluation and treatment to restore his competency.
Plaintiff filed the complaint underlying this appeal in No-
vember 2020, after being transferred to Citrus following a three-
month stay at Butner. Plaintiff’s initial filing was designated as a
habeas corpus petition and it was filed pro se. In the petition, Plain-
tiff claimed he was innocent of the charges in the indictment, and
that he had been denied effective assistance of counsel and access
to discovery and had been falsely declared incompetent.
In December 2020, Plaintiff filed a purported amendment to
his petition, to which he attached a pro se motion seeking civil dam-
ages from several individuals involved in his investigation, arrest,
and criminal proceedings, including attorneys Palmieri and
O’Brien, FBI agent Repp, Prosecutor Rachel Jones, and Magistrate
Judges Sansone and Flynn. The district court granted Plaintiff leave
to amend but advised him that his wrongful arrest and detention
claims were not ripe for review because his criminal case was still
pending. The court also instructed Plaintiff that (1) he could raise
issues about his counsel in a motion for relief under 28 U.S.C.
§ 2255 if he was convicted, (2) his challenge to the order adjudicat-
ing him incompetent could be cognizable in habeas proceedings
filed against the Citrus warden under 28 U.S.C. § 2241, and (3) his
claim for damages might be cognizable in a proceeding under 42
U.S.C. § 1983 if he could show he was denied a constitutional right
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22-10886 Opinion of the Court 5
under color of law. The court directed the clerk to send Plaintiff
the standard prisoner forms for all three types of actions.2
Plaintiff subsequently was transferred back to Butner for
treatment. While there, Plaintiff filed a prisoner complaint assert-
ing § 1983 claims against attorneys Palmieri, O’Brien, and Robbins,
wardens Scarantino, Gualtieri, and Prendergast, prosecutors Jones
and Lopez, Judges Flynn, Sansone, and Merryday, and FBI agent
Repp based on alleged violations of his Fourth, Sixth, and Four-
teenth Amendment rights. Along with the complaint, Plaintiff filed
a motion to proceed in forma pauperis, indicating that he was indi-
gent. A few days later, Plaintiff filed a second § 1983 complaint and
a document titled an “amended remedy” in which he essentially
asserted the same factual claims and asked to be found not guilty
of the charges pending against him, released from custody, and
compensated at a daily rate for his wrongful incarceration.
While the above filings were pending, the doctors at Butner
reported to the court that Plaintiff remained incompetent and was
refusing to accept medication that might restore his competency.
Upon receipt of the report, Judge Flynn held another competency
hearing, after which he issued a report and recommendation
(“R&R”) finding that Plaintiff’s condition had not improved and
2 Before the court could enter its order, Plaintiff filed two documents raising
additional civil rights claims. The court construed those documents as
amended petitions, advised Plaintiff that the claims may be cognizable under
§ 1983, and stayed the case to permit Plaintiff to refile them correctly using the
standard form for a civil rights complaint enclosed with its earlier order.
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6 Opinion of the Court 22-10886
there was no substantial probability he could be restored to com-
petency in the foreseeable future. When the district court adopted
the R&R, the Government filed a motion to dismiss the indictment
against Plaintiff without prejudice. The district court granted the
motion, and Plaintiff was released from custody in August 2021.
Thereafter, Plaintiff filed a third amended complaint against
the same defendants. The district court granted leave to amend
and accepted Plaintiff’s third amendment as the operative com-
plaint. Given Plaintiff’s in forma pauperis motion, the court re-
viewed the claims asserted in the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Upon its review, the court concluded that Plaintiff
could not assert a viable claim against the attorneys, prosecutors,
or judges named in the complaint because all these individuals are
immune from liability for claims arising from their participation in
Plaintiff’s criminal proceeding. As for the wardens, the court held
that Plaintiff’s claims were meritless because he failed to allege that
any of the wardens personally participated in or contributed to his
constitutional violations. Finally, the court determined that Plain-
tiff’s allegations were too vague and conclusory to state a claim
against Repp, and that any claim based on illegal surveillance in
2014 and an unlawful warrant in early 2016 were untimely because
those claims are governed by a four-year statute of limitations and
Plaintiff did not meet that deadline. The court concluded by dis-
missing Plaintiff’s complaint with prejudice, noting that Plaintiff
had failed to state a viable claim despite multiple opportunities to
do so.
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22-10886 Opinion of the Court 7
Plaintiff filed a notice of appeal and a motion in the district
court to proceed with the appeal in forma pauperis and to appoint
counsel to represent him. The district court denied Plaintiff’s mo-
tions, stating that his appeal was meritless and that appointment of
counsel to a civil litigant is only available in exceptional circum-
stances not present in this case. Plaintiff then filed a separate mo-
tion to “reopen” his case, in which he claimed he had retained an
attorney, Ben Buck, who failed to take various essential steps in his
case. Attorney Buck responded that he had declined to represent
Plaintiff after Plaintiff refused to pay his hourly fee. The court in-
terpreted Plaintiff’s filing as a motion to reopen pursuant to Federal
Rule 60(b), determined that it could deny the motion even though
Plaintiff’s pending appeal otherwise deprived it of jurisdiction, and
denied the motion because the record refuted Plaintiff’s claim re-
garding attorney Buck.
Thereafter, Plaintiff filed successive motions in this Court to
proceed in forma pauperis and for appointment of counsel, multiple
subpoenas for various individuals—including former United States
Attorney General William Barr—to testify at a deposition, docu-
ments purporting to restate his allegations and “revise the defend-
ants” listed in his appeal, and what appear to be at least two pur-
ported amended complaints. This Court denied Plaintiff’s in forma
pauperis motion and his request for appointment of counsel after
finding that the appeal presented “no issue of arguable merit.”
Plaintiff subsequently paid the applicable filing fee and filed a mo-
tion to amend his complaint, which this Court denied. Plaintiff
then filed motions in this Court for a default judgment and to add
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8 Opinion of the Court 22-10886
parties and revise his complaint, both of which motions remain
pending.
Plaintiff’s appellate brief does not challenge any of the rea-
sons provided by the district court for dismissing his complaint un-
der § 1915(e)(2)(B)—that is, the immunities precluding liability for
the prosecutors, attorneys, and judges named in the complaint, the
statute of limitations bar applicable to claims arising from a 2016
search warrant and preceding surveillance, and the failure of the
complaint to specifically allege any acts by the remaining defend-
ants that arguably violated Plaintiff’s constitutional rights. As such,
we find that Plaintiff has abandoned these issues and we AFFIRM
the district court’s dismissal of his complaint on that ground. As
for the pending motions, Plaintiff’s purported amendment of his
complaint is procedurally impermissible and there is no basis upon
which to grant Plaintiff’s requested default judgment. Accordingly,
we DENY Plaintiff’s motions.
DISCUSSION
The district court dismissed Plaintiff’s complaint sua sponte
pursuant to 28 U.S.C. § 1915(e)(2)(B), which applies to a complaint
filed in forma pauperis and which requires the dismissal of such a
complaint if it “fails to state a claim on which relief may be granted”
or “seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B)(ii), (iii). See also Hughes v.
Lott, 350 F.3d 1157, 1159 (11th Cir. 2003) (setting out the standards
applicable under § 1915(e)(2)(B)). We review the sua sponte dismis-
sal of a complaint under § 1915(e)(2)(B) de novo, viewing the
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22-10886 Opinion of the Court 9
allegations in the complaint as true. See Hughes, 350 F.3d at 1160.
Dismissal is warranted if the complaint, assuming its allegations are
true, does not contain “sufficient factual matter . . . to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
As a pro se litigant, Plaintiff’s pleadings “are held to a less
stringent standard than pleadings drafted by [an] attorney[] and
will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). But this leniency does
not give a court “license to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to sustain an
action.” GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369
(11th Cir. 1998) (citations omitted), overruled on other grounds by Iq-
bal, 556 U.S. 662 (2009). Accordingly, we will affirm the dismissal
of Plaintiff’s complaint if it does not meet the facial plausibility
standard—that is, if its allegations do not support a reasonable in-
ference “that the defendant[s] [are] liable for the misconduct al-
leged.” Iqbal, 556 U.S. at 678.
As mentioned, Plaintiff does not in his appellate brief address
any of the district court’s grounds for dismissing his complaint.
Again, the court held that Plaintiff’s claims against the court-ap-
pointed attorneys, prosecutors, and judges named in the complaint
are barred by immunity, that any claim based on unlawful surveil-
lance or an illegal warrant is time-barred, and that Plaintiff’s allega-
tions against the remaining defendants—the wardens and Agent
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10 Opinion of the Court 22-10886
Repp—do not support a claim that these individuals personally par-
ticipated in or contributed to any alleged constitutional violation,
as required to support individual liability under § 1983.3 Plaintiff’s
appellate brief does not even acknowledge the immunity or statute
of limitations issues. Nor does Plaintiff explain in his brief how the
wardens or Repp personally violated his constitutional rights. In-
deed, Plaintiff does not mention Repp at all and he only discusses
the wardens in passing. As such, Plaintiff has abandoned any chal-
lenge to the district court’s rulings on these issues, and we affirm
the dismissal order on that ground. See 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 sup-
porting arguments and authority.”); Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se
litigant are deemed abandoned.” (citation omitted)).
3 Plaintiff has named both state and federal officials as defendants in his com-
plaint. We note that Plaintiff’s claims against federal officials arise under Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
rather than § 1983. See Bivens, 403 U.S. at 397 (authorizing an action for dam-
ages against federal officials based on their violation of the plaintiff’s Fourth
Amendment rights). For purposes of this appeal, there is no material differ-
ence between liability arising under § 1983 and that arising under Bivens, so we
do not distinguish between the two in our discussion. See Abella v. Rubino, 63
F.3d 1063, 1065 (11th Cir. 1995) (“The effect of Bivens was, in essence, to create
a remedy against federal officers, acting under color of federal law, that was
analogous to the section 1983 action against state officials.” (quotation marks
and citation omitted)).
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22-10886 Opinion of the Court 11
We note briefly that the district court’s rulings as to immun-
ity, the statute of limitations bar, and Plaintiff’s failure to allege suf-
ficient facts to support a viable claim for individual liability against
Repp or the wardens are correct, and that we would affirm those
rulings even if they were properly challenged by Plaintiff on appeal.
Judges enjoy absolute immunity from damages for acts taken in
their judicial capacity so long as they do not act “in the clear ab-
sence of all jurisdiction.” Sibley v. Lando, 437 F.3d 1067, 1070 (11th
Cir. 2005) (quotation marks omitted). Plaintiff does not allege that
the judges named as defendants in this case acted in the absence of
jurisdiction. Prosecutors likewise are immune from liability for
acts “intimately associated” with the judicial phase of a criminal
trial, a category that includes all the acts alleged by Plaintiff. See
Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999) (quotation
marks omitted). Prosecutors only have qualified immunity when
performing functions that are “not associated with [the prosecu-
tor’s] role as an advocate for the state”—for example, investigative
functions. See id. at 1282. But again, Plaintiff’s claims against the
prosecutors named in the complaint do not concern such func-
tions. Finally, court-appointed defense attorneys are not subject to
liability under § 1983, or under the Bivens corollary that applies
when a federal official is involved, for acts related to their represen-
tation of an indigent defendant. See Polk Cnty. v. Dodson, 454 U.S.
312, 325 (1981) (explaining that a public defender does not act un-
der color of law, as required to impose liability under § 1983, “when
performing a lawyer’s traditional functions as counsel to a defend-
ant in a criminal proceeding”).
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12 Opinion of the Court 22-10886
Regarding Repp, the district court did not err when it found
Plaintiff could not assert a plausible claim based on allegedly un-
lawful surveillance in 2014 and an illegal warrant in March 2016
because the applicable statute of limitations required any such
claim to be filed within four years of those events, and Plaintiff did
not satisfy that requirement. See Chappell v. Rich, 340 F.3d 1279,
1283 (11th Cir. 2003) (noting that § 1983 claims are governed by the
statute of limitations for personal injury actions in the state in
which the cause of action arose, which in Florida is four years). Nor
did the court err when it determined that Plaintiff had failed to al-
lege any other facts that could plausibly subject Repp to personal
liability under § 1983. Plaintiff claimed in his complaint that Repp
lied at a bond hearing, improperly used a confidential informant,
withheld exculpatory evidence, and unlawfully arrested him. The
court correctly disposed of these claims, holding that (1) Repp was
immune from liability arising out of her testimony at a pretrial
hearing, (2) the use of a confidential informant does not violate
constitutional rights unless it is done in a manner that “shocks that
conscience” or is arbitrary, which Plaintiff did not allege, and
(3) the remaining allegations were too vague and conclusory to
state a claim because Plaintiff did not identify the exculpatory evi-
dence at issue or the purported defect in his search or arrest war-
rant, nor provide any facts indicating that Repp was personally re-
sponsible for any such defect.4 See Jones, 174 F.3d at 1281 (“Police
4 As the district court noted, Plaintiff’s claim that Repp withheld exculpatory
evidence also fails because he did not allege that Repp acted in bad faith. See
Porter v. White, 483 F.3d 1294, 1308 (11th Cir. 2007) (“[W]e hold that mere
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22-10886 Opinion of the Court 13
officers enjoy the same absolute immunity as lay witnesses for their
testimony at trial … or in front of the grand jury.” (citations omit-
ted)) and Waddell v. Hendry Cnty. Sheriff’s Ofc., 329 F.3d 1300, 1307
(11th Cir. 2003) (holding that the defendant’s use of a confidential
informant was not “so egregious” that it established a substantive
due process violation).
Likewise, the district court correctly held that Plaintiff failed
to allege a basis for imposing individual liability under § 1983 on
any of the wardens named in the complaint. Plaintiff’s allegations
regarding the wardens all relate to issues beyond the authority of
the wardens and/or conduct by jail doctors or other officials that
the wardens did not participate in or sanction. For example, Plain-
tiff alleges that Scarantino and Prendergast illegally detained him
or “held him hostage” in their facilities, denied him a speedy trial,
and refused his request for a different court-appointed attorney.
These are not decisions within the sphere of a warden’s authority.
Plaintiff also alleges that doctors at Butner evaluated and tried to
medicate him in a manner that violated his constitutional rights,
but he does not allege that Scarantino participated in or was aware
of the violations. Plaintiff likewise complains about various acts of
doctors and other jail officials at Pinellas (for example officials who
allegedly housed him with hardened criminals and failed to retrieve
negligence or inadvertence on the part of a law enforcement official in failing
to turn over Brady material to the prosecution, which in turn causes a defend-
ant to be convicted at a trial that does not meet the fairness requirements im-
posed by the Due Process Clause, does not amount to a ‘deprivation’ in the
constitutional sense.”).
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14 Opinion of the Court 22-10886
him for attorney visits), but again he does not allege that Gualtieri
was involved in any of these acts, as would be required to impose
individual liability under § 1983.
Furthermore, the district court did not abuse its discretion
by dismissing Plaintiff’s third amended complaint with prejudice
and without granting him to leave to amend. As the court pointed
out, Plaintiff had multiple opportunities to amend his complaint
after being advised by the court in prior orders of the specific defi-
ciencies in the complaint. It would have been futile to grant Plain-
tiff leave to amend as to most of the defendants named in the com-
plaint, because they are immune from suit on his asserted claims.
But even as to those defendants without clear immunity, Plaintiff
tried numerous times and repeatedly failed to state a claim that
would support § 1983 liability. See Vanderberg v. Donaldson, 259 F.3d
1321, 1327 (11th Cir. 2001) (upholding a district court’s dismissal of
the plaintiff’s complaint without granting leave to amend where
the plaintiff’s motion to amend “failed to allege new facts from
which the district court could have concluded that [he] may have
been able to state a claim successfully”).
Finally, we DENY Plaintiff’s pending motions in this Court
seeking a default judgment and to amend his complaint. As is ap-
parent from the above discussion, Plaintiff is not entitled to a judg-
ment in this action. Regarding his motion to amend, Plaintiff
wants to assert new claims against additional parties. Any parties
not named as defendants in Plaintiff’s complaint below are not
properly before this Court. Moreover, the Court has “repeatedly
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22-10886 Opinion of the Court 15
held that an issue not raised in the district court and raised for the
first time in an appeal will not be considered[.]” Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quotation
marks omitted). Accordingly, there is no basis for granting Plain-
tiff’s motion to amend.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order dismissing Plaintiff’s complaint under § 1915(e)(2)(B) and we
DENY Plaintiff’s pending motions in this Court to enter a default
judgment and to amend his complaint.
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