NOT RECOMMENDED FOR PUBLICATION
File Name: 11a0541n.06 FILED
No. 10-3241 Aug 04, 2011
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LYLE MODESTY, )
)
Plaintiff – Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
MICHAEL SHOCKLEY, et al., )
) OPINION
Defendants, )
)
and )
)
CITY OF CLEVELAND; )
JOHN DOE, Unknown Police Officers, )
)
Defendants – Appellees )
___________________________________ )
Before: ROGERS and KETHLEDGE, Circuit Judges; and RUSSELL, Chief District Judge.*
THOMAS B RUSSELL, Chief District Judge. Plaintiff Lyle Modesty appeals from the
dismissal of his complaint by the district court. On appeal, Plaintiff also contests the district court’s
denying as moot his motion to amend the complaint. For the reasons set forth below, we AFFIRM
the judgment of the district court.
*
The Honorable Thomas B. Russell, United States Chief District Judge for the Western
District of Kentucky, sitting by designation.
No. 10-3241
Modesty v. City of Cleveland, et al.
I. BACKGROUND
Plaintiff owned a home in the City of Cleveland. While performing his job duties, Housing
Inspector Michael Shockley noticed what he thought to be housing code violations at Plaintiff’s
home. Mr. Shockley obtained an administrative search warrant and subsequently searched Plaintiff’s
home for violations. Following the search, Plaintiff’s home was declared a public nuisance and
boarded. Plaintiff was in the home during the execution of the search warrant, and police arrested
Plaintiff and transported him to St. Vincent Charity Hospital, escorted him to the psychiatric unit and
searched him. Plaintiff was also forced to submit to a blood sample and questioned by doctors. The
total detainment lasted for a few hours, after which Plaintiff was permitted to leave the hospital.
As a result, Plaintiff filed a pro se complaint on multiple grounds. The majority of those
grounds were dismissed during an initial review. The only claim to survive initial review was the
claim against “John Doe police officers and the City of Cleveland solely on Mr. Modesty’s Fourth
Amendment claim pertaining to his arrest.” Mem. Op. & Order, R. at 4, pg. 14. An appeal of that
order is not currently before this Court.
Following the initial review, Defendant City of Cleveland filed a motion to strike or for a
more definite statement. In response, Plaintiff filed an amended complaint. Once again, Defendant
City of Cleveland filed a motion to strike or for a more definite statement, and Plaintiff filed a
second amended complaint. Defendant City of Cleveland filed a motion to dismiss the second
amended complaint. After briefing, the motion to dismiss was granted, and Plaintiff has appealed
that order.
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No. 10-3241
Modesty v. City of Cleveland, et al.
Following the appeal, the remaining Defendants, John Doe unknown Police Officers, were
dismissed. No appeal was taken from that order.
II. JURISDICTION
Plaintiff filed his appeal prior to the final disposition of this case. The order did not state that
it was final and appealable. Accordingly, at the time of the appeal, jurisdiction was not appropriate
under 28 U.S.C. § 1291. However, prior to final disposition of this case on appeal, it appears that
all remaining defendants have been dismissed for lack of prosecution. That order also failed to state
that it was final and appealable. Nevertheless, under Gillis v. United States Dep’t of Health and
Human Sevs., because the cause has reached a final disposition, there is jurisdiction to hear the
appeal. 759 F.2d 565, 569 (6th Cir. 1985). Accordingly, and especially in light of Plaintiff’s pro se
status, the Court proceeds to the merits.
III. STANDARD OF REVIEW
A decision to grant a motion to dismiss is reviewed de novo by an appellate court. Ley v.
Visteon Corp., 543 F.3d 801, 805 (6th Cir. 2008).
IV. ANALYSIS
Plaintiff appealed the District Court’s dismissal of the City of Cleveland. Notice of Appeal,
R. at 28. When suing a municipality, an unlawful policy or custom must be alleged. Monell v. Dept.
of Soc. Servs., 436 U.S. 658, 690-691 (1978). The only claim remaining against the City of
Cleveland involved Plaintiff’s arrest and detention during and following the administrative search.
Plaintiff does not allege any unconstitutional policy or custom pertaining to his arrest. The only
policies and customs alleged involved the process used to search and then condemn Plaintiff’s home.
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No. 10-3241
Modesty v. City of Cleveland, et al.
Accordingly, Plaintiff failed to articulate a policy or custom related to his arrest. Because Plaintiff
has failed to allege a policy or custom of the City of Cleveland pertaining to his arrest or facts that
could implicate a policy or custom of the City of Cleveland pertaining to his arrest, it was
appropriate for the district court to dismiss the Defendant City of Cleveland. Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007).
As touched on above, the majority of the arguments Plaintiff presents on appeal center
around the claims dismissed during the initial review. However, Plaintiff only appealed the
“Dismissal of defendant (Cleveland, City of)". Notice of Appeal, R. at 28. Similarly, Plaintiff only
appealed from the order entered “on the Ninth day of February, 2010.” Id. The dismissal of the city
of Cleveland was the only action that resulted from the district court’s order of February 9, 2010.
Mem. Op. & Order, R. at 27, pg. 7. Federal Rule of Appellate Procedure 3(c)(1)(B) requires a party
to “designate the judgment, order, or part thereof being appealed[.]” While Rule 3 should be liberally
construed, its “dictates are jurisdictional in nature, and their satisfaction is a prerequisite to appellate
review.” Smith v. Barry, 502 U.S. 244, 248 (1992). Accordingly, this Court lacks jurisdiction to
review any claims not designated in the notice of appeal, including those dismissed on initial review.
Accord United States v. Universal Mgmt. Serv., Inc., 191 F.3d 750, 756 (6th Cir. 1999). Since
Plaintiff did not appeal a final memorandum and opinion or judgment, the issues are not preserved
under Caudill v. Hollan, 431 F.3d 900 (6th Cir. 2005).1
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In addition, Defendant failed to brief the issues dismissed on initial review because Plaintiff
failed to designate the order in his notice of appeal and the district court certified that an appeal from
the initial review could not be taken in good faith. As a result, Defendant would be prejudiced if this
Court were to reach those claims.
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No. 10-3241
Modesty v. City of Cleveland, et al.
Plaintiff also argues that he should have been able to address Defendant’s reply, which the
District Court treated as a motion to file a sur-reply. A decision to deny or strike a sur-reply is
reviewed for abuse of discretion. Seay v. Tenn. Valley Auth., 339 F.3d 454, 480 (6th Cir. 2003). In
this case, the district court stated that Defendant’s reply stayed within the bounds of the original
briefing when denying leave to file a sur-reply. Such a ruling is not an abuse of the district court’s
discretion.
Finally, Plaintiff argues that he should have been granted permission to file another amended
complaint prior to the dismissal. An order denying leave to file an amended complaint is reviewed
for abuse of discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). In the instant case, Plaintiff had
been given two opportunities to amend his complaint. Repeated failure to cure deficiencies by
amendments previously allowed is grounds for denying a motion to amend a complaint. Id. Because
the district court had already allowed for two amendments, it was not an abuse of discretion to deny
leave to amend a third time.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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