Jesse Regalado v. Town of Trion, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12258
Non-Argument Calendar
____________________
JESSE REGALADO,
Plaintiff-Appellant,
versus
TOWN OF TRION,
CITY OF SUMMERVILLE,
CHATOOGA COUNTY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 23-12258
D.C. Docket No. 4:22-cv-00277-WMR
____________________
Before NEWSOM , ABUDU, and MARCUS, Circuit Judges.
PER CURIAM:
Jesse Regalado, proceeding pro se, appeals following the dis-
trict court’s dismissal of his civil rights complaint, which he
brought under 42 U.S.C. § 1983 against the Town of Trion; the City
of Summerville; and Chattooga County (collectively, “the defend-
ants”). His complaint claims that he gave local government offi-
cials certain ideas about potential town projects, and the officials
took those ideas and used them without paying him for the ideas,
purportedly in violation of his constitutional and statutory rights.
The district court dismissed his suit for, inter alia, failure to state a
claim upon which relief could be granted and improper service as
to two of the defendants.
On appeal, Regalado argues that: (1) the district court erred
in finding that the defendants did not violate his rights under the
Fourth, Fifth, and Fourteenth Amendments because they seized his
intellectual property without compensation or due process; (2) the
defendants’ actions violated his contractual rights; and (3) he
properly served all defendants.1 After careful review, we affirm.
1 Regalado has also filed three motions on appeal: to stay the judgment due to
an emergency surgery and two related motions to seal his medical records.
Regalado offers no law to support his argument that we should stay the judg-
ment and it is unclear how the surgery would necessitate that we do so.
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23-12258 Opinion of the Court 3
I.
When appropriate, we review de novo a district court’s ruling
on a Rule 12(b)(6) motion to dismiss. Timson v. Sampson, 518 F.3d
870, 872 (11th Cir. 2008). A court must view the complaint in the
light most favorable to the plaintiff and accept all the plaintiff’s well
pleaded facts as true. Id. We also review de novo a district court’s
interpretation of Rule 4 of the Federal Rules of Civil Procedure.
Lepone-Dempsey v. Carroll Cty. Comm’rs, 476 F.3d 1277, 1280 (11th
Cir. 2007). We review for abuse of discretion a court’s dismissal
without prejudice of a complaint for failure to timely serve a de-
fendant under Rule 4(m), as well as a court’s decision to grant an
extension of time under Rule 4(m). Id. We will affirm unless we
conclude that the district court has made a clear error of judgment
or has applied the wrong legal standard. Richardson v. Johnson, 598
F.3d 734, 738 (11th Cir. 2010).
To survive a Rule 12(b)(6) motion, a complaint must allege
sufficient facts to state a claim that is plausible on its face. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will
However, Regalado’s medical records are of little public value and are per-
sonal in nature. Accordingly, we DENY his motion to stay the judgment and
GRANT both motions to seal.
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4 Opinion of the Court 23-12258
not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d
1182, 1188 (11th Cir. 2002). However, “[w]here a more carefully
drafted complaint might state a claim,” a pro se plaintiff “must be
given at least one chance to amend the complaint before the district
court dismisses the action with prejudice.” Bryant v. Dupree, 252
F.3d 1161, 1163 (11th Cir. 2001) (quotations omitted).
Pro se pleadings are held to a less stringent standard than
counseled pleadings and, therefore, are liberally construed. Tan-
nenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Nev-
ertheless, pro se litigants are still required to conform to procedural
rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). Fur-
ther, liberal treatment of pro se pleadings “does not give a court li-
cense to serve as de facto counsel for a party, or to rewrite an other-
wise deficient pleading in order to sustain an action.” Campbell v.
Air Jamaica, 760 F.3d 1165, 1168–69 (11th Cir. 2014).
An appellant abandons an issue by failing to challenge it on
appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (ap-
plying this abandonment rule to a pro se litigant). An appellant also
abandons a claim where he presents it only in “passing references”
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)). Further, to
obtain reversal of a district court judgment based on multiple,
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23-12258 Opinion of the Court 5
independent grounds, an appellant must convince us that every
stated ground for the judgment against him is incorrect. Id. at 680.
II.
First, we are unpersuaded by Regalado’s argument that the
district court erred in dismissing his § 1983 claims alleging viola-
tions of the Fourth, Fifth, and Fourteenth Amendments. Section
1983 prohibits officials acting under color of state law from depriv-
ing another of their constitutional rights. 42 U.S.C. § 1983. A mu-
nicipal or county government may be subject to suit under § 1983
“when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts . . . injury.” Monell v.
Dep’t of Soc. Serv., 436 U.S. 658, 695 (1978).
The Fifth Amendment provides that: “No person shall be . .
. deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just com-
pensation.” U.S. Const. amend. V. The Fifth Amendment thus
prohibits governmental takings of personal property, including in-
tellectual property. Horne v. Dep’t of Agric., 576 U.S. 350, 359–60
(2015). The “just compensation” clause in the Fifth Amendment
applies to the states through the Fourteenth Amendment. First
Eng. Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., Cal.,
482 U.S. 304, 310 n.4 (1987). The Fourteenth Amendment similarly
protects against the deprivation of property without due process of
law. U.S. Const. amend. XIV.
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6 Opinion of the Court 23-12258
The Fourth Amendment, which also applies to the states
through the Fourteenth Amendment, protects individuals from un-
reasonable seizures of their property. Gennusa v. Canova, 748 F.3d
1103, 1109–10 (11th Cir. 2014). A seizure of property occurs when
there has been a meaningful interference with a person’s posses-
sory interest in the property. Crocker v. Beatty, 886 F.3d 1132, 1136
(11th Cir. 2018). The “touchstone of the Fourth Amendment is
reasonableness.” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quota-
tions and citation omitted). Reasonableness is measured by exam-
ining the totality of the circumstances. Id.
For starters, it appears that Regalado has failed to adequately
preserve on appeal his challenge to the district court’s dismissal of
his constitutional claims. As the record reflects, the district court
held that his constitutional claims failed for multiple reasons; one
of these reasons was that Regalado had not alleged any facts to es-
tablish that Chattooga County was subject to suit. Indeed, to make
out his constitutional claim under § 1983, Regalado needed to plead
that the County had policies or customs related to his allegations,
see Monell, 436 U.S. at 695, and he alleged nothing of the sort.
However, Regalado’s brief on appeal does not address the
district court’s dismissal of his constitutional claims based on his
failure to allege facts establishing that the County was subject to
suit. As a result, he has not expressly challenged one of the inde-
pendent grounds on which the district court based its dismissal,
which means that he abandoned on appeal any challenge to his
constitutional claims against the County. Nor does his brief make
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23-12258 Opinion of the Court 7
any substantive argument about the court’s dismissal of his intel-
lectual property claims, so he has abandoned this issue as well.
Regardless, even if we were somehow able to find that Re-
galado had implicitly preserved sufficient challenges to this issues,
they would still fail. As for the Fourth Amendment claim, Rega-
lado did not allege facts showing that an illegal seizure of property
occurred because his complaint states that he gave his plans to Chat-
tooga County. And by voluntarily relinquishing control over the
plans, he cannot be said to have a reasonable possessory interest in
it. Crocker, 886 F.3d at 1136; Ohio, 519 U.S. at 39.
Regalado’s Fifth Amendment claim also fails because his
complaint did not allege facts showing that the County used his
plans for a medical center. Rather, he said he learned that a medical
facility was going to be built in the Town of Trion and he assumed
the defendants had used his plans. This conclusory allegation is
insufficient to survive a motion to dismiss. Oxford Asset Mgmt., 297
F.3d at 1188. Even though the Fifth Amendment prohibits govern-
mental takings of intellectual property, Regalado’s idea cannot be
“taken” unless the County actually implemented it. Horne, 576 U.S.
at 359–60. And for similar reasons, Regalado’s Fourteenth Amend-
ment claim fails too, since he did not allege that the defendants ac-
tually used any of the ideas he freely gave to them.
Accordingly, because Regalado failed to adequately allege
his constitutional claims, and then failed to properly challenge the
district court’s dismissal of them, we affirm as to these issues.
III.
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8 Opinion of the Court 23-12258
We are also unconvinced by Regalado’s argument that the
district court erred in dismissing his breach of contract claims. In
Georgia, “[a]ll contracts entered into by the county governing au-
thority with other persons [o]n behalf of the county shall be in writ-
ing and entered on its minutes.” O.C.G.A. § 36-10-1. But Regalado
did not allege that he had entered into a written contract with Chat-
tooga County, as required by Georgia law. Thus, his contract
claims were properly dismissed, and we also affirm in this respect.
IV.
Finally, we find no merit in Regalado’s argument that the
district court abused its discretion in dismissing without prejudice
his claims against the Town of Trion and the City of Summerville.
Federal Rule of Civil Procedure 4 provides that state-created gov-
ernments must be served by: “(A) delivering a copy of the sum-
mons and of the complaint to its chief executive officer; or (B) serv-
ing a copy of each in the manner prescribed by that state’s law for
serving a summons or like process on such a defendant.” Fed. R.
Civ. P. 4(j)(2). Under Georgia law, cities and towns must be served
by “delivering a copy of the summons attached to a copy of the
complaint . . . to the chairman of the board of commissioners, pres-
ident of the council of trustees, mayor or city manager of the city,
or to an agent authorized by appointment to receive service of pro-
cess.” O.C.G.A. § 9-11-4(e)(5).
When a defendant is not served within 90 days of filing of
the complaint, the district court, on motion or on its own after no-
tice to the plaintiff, “must dismiss the action without prejudice
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23-12258 Opinion of the Court 9
against that defendant or order that service be made within a spec-
ified time.” Fed. R. Civ. P. 4(m). However, if the plaintiff shows
good cause for failure to timely effect service, the court “must ex-
tend the time for service for an appropriate period.” Id. The pro-
cedural requirement of service of process must be satisfied before
a federal court may exercise personal jurisdiction over a defendant.
De Gazelle Grp., Inc. v. Tamaz Trading Establishment, 817 F.3d 747,
748 (11th Cir. 2016).
Here, the district court did not abuse its discretion in dis-
missing without prejudice Regalado’s claims against the Town of
Trion and the City of Summerville under Rule 4(m). Regalado has
stated, below and on appeal, that he served two private attorneys
rather than any Trion or Summerville officials, as required by
O.C.G.A. § 9-11-4. See also Fed. R. Civ. P. 4(j)(2). Further, both
Trion and Summerville deny that these private attorneys were au-
thorized to receive service. Thus, the district court did not make a
clear error of judgment or applied the wrong legal standard, and
we affirm.2
AFFIRMED.
2 Regalado also argues that the defendants and the court violated several
statutes and regulations that are irrelevant to his claims. For example, he says
that the defendants violated the “general character of truthfulness” in
O.C.G.A. § 24-6-608 and the Georgia Code of Ethics for Government Service,
O.C.G.A. § 45-10-1. He also claims that the district court violated Federal Rule
of Civil Procedure 60(b)(1)(3), and American Bar Association Rule 2.2 “Impar-
tiality and Fairness.” However, because these statements have no applicability
to his claims or in the manner he describes, we need not address them further.
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