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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14566
Non-Argument Calendar
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D.C. Docket No. 9:12-cv-80263-KLR
CURTIS SHERROD,
Plaintiff - Appellant,
versus
THE SCHOOL BOARD OF PALM BEACH COUNTY,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 23, 2013)
Before HULL, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
Curtis Sherrod, proceeding pro se, appeals the dismissal of his lawsuit
against his former employer, the School Board of Palm Beach County, Florida (the
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Board), and the district judge’s refusal to recuse from the case. Because the
district judge was not required to recuse and Sherrod’s claims are barred by the
terms of a settlement agreement he signed with the Board, we affirm.
After several years of litigation over his termination, Sherrod filed a lawsuit
against the Board in 2007 claiming he was retaliated against for exercising his
rights under the First Amendment to the United States Constitution. That suit
culminated in a settlement agreement between the parties, which Sherrod signed on
January 25, 2008. In exchange for $272,425, Sherrod agreed to:
[R]elease, acquit, satisfy and forever discharge the School [Board] . . . from
any and all . . . claims of employment discrimination, claims of retaliation,
[and] . . . any claims under Section 1981 through 1988 of Title 42 of the
United States Code . . . which Curtis Sherrod, now has, or hereafter can,
shall or may have against the School [Board] for reason of any matter. . .
including, but not limited to, any and all matters arising out of or even
arguably involving employment with the School District, as well as issues
involving the negotiation and execution of this Agreement.
Sherrod also agreed “not to initiate or pursue any other actions related, either
directly or indirectly, to his employment with the School District,” beyond the case
that was then pending.
Notwithstanding this agreement, Sherrod, a black male, filed this action
alleging the Board violated his rights under 42 U.S.C. § 1981 by entering into a
more favorable settlement agreement with a white male, Dr. Thomas Elfers, who
had also sued the Board alleging First Amendment violations. Specifically, he
claimed the School Board had ignored his $300,000 settlement offer (before
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ultimately settling for $272,425), but had offered Dr. Elfers $490.000. The Board
moved to dismiss Sherrod’s claims, asserting they were barred by the settlement
agreement he signed, which the Board attached to the motion. Sherrod responded
and shortly thereafter filed a motion claiming the district judge had to recuse
because he had a demonstrated “blind spot” to civil-rights claims. The district
court denied Sherrod’s motion for recusal and granted the Board’s motion to
dismiss, finding that Sherrod’s claims were barred by the plain language of the
settlement agreement he signed in his prior action. This is Sherrod’s appeal.
We review de novo the dismissal of a complaint for failure to state a claim
upon which relief may be granted, accepting the allegations as true and considering
them in the light most favorable to the plaintiff. Starship Enters. of Atlanta v.
Coweta Cnty., Ga., 708 F.3d 1243, 1252 (11th Cir. 2013). Generally, we look
only to the allegations contained in a complaint to decide if it states a viable claim.
But we may also consider a document attached to a motion to dismiss if it is
“central to the plaintiff’s claim,” and its authenticity is not challenged. Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). We also construe a settlement
agreement de novo, applying Florida contract law in this case. Schwartz v. Fla. Bd.
of Regents, 807 F.2d 901, 905 (11th Cir. 1987). Under Florida law, “[w]ords in a
contract are to be given their plain and ordinary meaning, and it is not for the court
to add or subtract any language from the face of a clearly worded agreement.” Id.
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“[O]nce a party accepts the proceeds and benefits of a contract, that party is
estopped from renouncing the burdens the contract places upon him.” Fineberg v.
Kline, 542 So. 2d 1002, 1004 (Fla. Dist. Ct. App. 1988).
After reviewing its terms, we agree with the district court’s conclusion that
the settlement agreement Sherrod signed bars the claims he makes in this action.
In exchange for consideration, Sherrod released the Board from liability for any
claims against it, including those under 42 U.S.C. § 1981 and those involving the
“the negotiation and execution of” the agreement itself. Moreover, Sherrod does
not contest that he has accepted the benefits he was due under the contract. Thus,
under Florida law, he is “estopped from renouncing” his part of the bargain —
forgoing further litigation relating to his employment with the Board and the
claims that arose from its termination, save those that were ongoing when the
settlement was inked.1 Fineberg, 542 So. 2d at 1004.
Despite this, Sherrod raises two arguments. First, he contends the Board is
in breach of the express or implied terms of the agreement, and second he argues
the agreement is void ad initio because the disparity with Dr. Elfers’s settlement
1
Sherrod claimed in his complaint (but not as part of the allegedly illegal conduct forming the
single count in his complaint) and in his brief on appeal that the Board interfered with his
continuing employment before he entered into the settlement agreement. He also now speculates
that the Board’s actions “may have very well played a significant role” in his suspension from a
job in 2009. But Sherrod fails to explain why we should not consider these claims barred by the
settlement agreement. And he did not present either of them to the district court in response to
the Board’s motion to dismiss, so we do not consider them further. See Ramirez v. Sec’y, U.S.
Dept. of Transp., 686 F.3d 1239, 1249 (11th Cir. 2012) (“It is well-settled that we will generally
refuse to consider arguments raised for the first time on appeal.”).
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agreement makes it illegal. But we have no occasion to review this contention.
Nowhere in Sherrod’s complaint, the dismissal of which we are reviewing, did he
allude to any breach. And he did not raise the argument in his response to the
Board’s motion to dismiss. He raised it only in a motion to reconsider the
dismissal of his complaint. The denial of that motion is not properly before us
because it occurred after Sherrod’s notice of appeal and Sherrod did not amend the
notice (or file a new one) to include it. See Fed. R. App. 3(c)(1)(B) (requiring the
notice of appeal to “designate the judgment, order, or part thereof being
appealed”); Weatherly v. Ala. State Univ., No. 12-13414, — F.3d — , 2013 WL
4712727, at *6 (11th Cir. Sept. 3, 2013) (reiterating that a party must file a new or
amended notice of appeal to seek review of a judgment rendered after it has
already filed a notice of appeal). And, in any event, Sherrod concedes he knew of
the actions he claims on appeal constituted breach before he filed his complaint,
but provides us no explanation why he mentioned them for the first time only after
the district court had granted the Board’s motion to dismiss. See Richardson v.
Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (“A motion for reconsideration
cannot be used to . . . raise argument . . . that could have been raised prior to the
entry of judgment.” (internal quotation marks omitted)). Thus, whether the Board
is in breach of the settlement agreement is a question for another day.
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Nor does Sherrod’s contention that the settlement agreement is void
persuade us that the district court improperly dismissed his complaint. Sherrod
accepted the consideration the Board offered under the agreement, so Florida law
dictates that he is estopped from taking back what he gave in return. Fineberg, 542
So. 2d at 1004. And Sherrod presents no legal authority upon which we could
permit him to escape the release he agreed to simply because he claims the Board
offered an employee of a different race a larger settlement sum. Indeed, in the
settlement, Sherrod specifically gave up the right to assert any claim under 42
U.S.C. § 1981 relating to the agreement’s execution. Having voluntarily entered
into such an agreement, Sherrod cannot now assert § 1981 gives him a cause of
action against the Board based on actions it took before and in relation to settling
with him.
Finally, the district judge did not abuse his discretion in deciding not to
recuse.2 The only bases for recusal Sherrod identified in the district court or in his
briefing on appeal are rulings the district court made in this case and others. 3 But,
as the Supreme Court has admonished, “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Liteky v. United States,
2
See Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004) (“We review for an abuse of
discretion the district court’s denial of a recusal motion.”).
3
Construing it liberally, we presume Sherrod founded his recusal motion on 28 U.S.C. § 455
because he did not file the affidavit that must accompany a motion filed under 28 U.S.C. § 144.
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510 U.S. 540, 555 (1994). Nothing Sherrod refers us to on appeal could justify
deviation from that general principle.
For the foregoing reasons, we affirm the district judge’s decision not to
recuse and the dismissal of Sherrod’s complaint for failure to state a claim because
his only claim was barred by the settlement agreement he signed.
AFFIRMED.
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