Ronald Micklas v. Carol-Lisa Phillips

Case: 12-15063 Date Filed: 06/21/2013 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 12-15063
Non-Argument Calendar
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D.C. Docket No. 0:12-cv-61010-RNS

RONALD MICKLAS,

Plaintiff-Appellant,

versus

CAROL-LISA PHILLIPS,
LISA WHITE,
J. ROBERT MIERTSCHIN, JR.,
J. DOE #2 CLERK,
FRED A. HAZOURI, et al.,

Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Florida
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(June 21, 2013)
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Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Appellant Ronald Micklas, proceeding pro se, appeals the district court’s

dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B), of his amended complaint

asserting various claims under 42 U.S.C. § 1983 and Florida state law against

Florida state circuit court judge Carol-Lisa Phillips; Florida Fourth District Court

of Appeals judges Fred A. Hazouri, Jonathan D. Gerber, and Burton C. Conner; the

Clerk of Court for the Florida Seventeenth Judicial Circuit Court Howard Forman;

private attorneys Lisa White and J. Robert Miertschin, Jr., and unknown Broward

County clerks. Micklas’s present complaint arose from a civil lawsuit Micklas

brought in Florida’s Seventeenth Judicial Circuit, which was dismissed by state

court Judge Phillips upon motion by the defendant’s attorney, White. Florida

appellate Judges Hazouri, Gerber, and Conner affirmed the circuit court’s order of

dismissal.

In his federal complaint, Micklas asserted § 1983 claims against Judges

Phillips, Hazouri, Gerber, and Conner, for violating his procedural and substantive

due process rights under the Fourteenth Amendment. Micklas also brought a

§ 1983 conspiracy claim against White, and various state law claims against White

and her employer, Miertschin. Micklas brought a § 1983 procedural due process

claim against Forman, and state law claims for retaliation and gross negligence.

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The gross negligence claim was against Forman in his individual and official

capacity, and all other claims against Forman were in his individual capacity.

Micklas also sued unknown Broward County clerks in their individual capacities

for theft, fraud, and extortion under Florida state law. The district court dismissed

Micklas’s complaint with prejudice under 28 U.S.C. § 1915(e)(2)(B). The district

court concluded that all of Micklas’s claims were either frivolous, failed to state a

plausible claim for relief, or were brought against defendants who were immune.

On appeal, Micklas argues that the district court erred in dismissing his

complaint because, since it had not yet ruled on his in forma pauperis motion, it

lacked jurisdiction for a 28 U.S.C. § 1915 dismissal. Moreover, he contends that

the district court applied the wrong legal standard in dismissing his complaint as

meritless because in forma pauperis complaints can only be dismissed as frivolous

or malicious. Finally, Micklas asserts that the district court erred by dismissing

his claims based on sovereign and judicial immunity grounds.

Section 1915(e)(2)(B) provides that, for parties proceeding in forma

pauperis, “the court shall dismiss the case at any time if the court determines that

the action or appeal is (i) frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). We review de novo

a dismissal for failure to state a claim pursuant to § 1915(e)(2)(B)(ii), and view the

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allegations in the complaint as true. Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir. 1997). A dismissal under § 1915(e)(2)(B)(ii) is governed by the same

standard as a dismissal under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Id. Dismissal for failure to state a claim is appropriate if the facts as

pleaded fail to state a claim for relief that is “plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (internal

quotation marks omitted).

Judges are entitled to absolute immunity for all actions taken in their judicial

capacity, except where there is a “clear absence of all jurisdiction.” Bolin v. Story,

225 F.3d 1234, 1239 (11th Cir. 2000) (internal quotation marks omitted). Absolute

judicial immunity “applies even when the judge’s acts are in error, malicious, or

were in excess of his or her jurisdiction.” Id.

“Under the Eleventh Amendment, state officials sued for damages in their

official capacity are immune from suit in federal court.” Jackson v. Georgia Dep’t

of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994). However, state officials sued in

their individual capacities for employment-related acts are not protected by the

Eleventh Amendment. Id. To establish a § 1983 claim alleging a denial of

procedural due process, a plaintiff must show three elements: “(1) a deprivation of

a constitutionally-protected liberty or property interest; (2) state action; and (3)

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constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232

(11th Cir. 2003).

As a preliminary matter, the record demonstrates that Micklas has not

challenged the district court’s dismissal of his claims against Lisa White on the

basis of frivolousness and failure to state a claim. Therefore, we conclude that he

has abandoned any argument with respect to these claims. Denney v. City of

Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (deeming issues not briefed on

appeal as abandoned). Micklas has also abandoned any argument he had with

respect to White’s employer, Miertschin. Id.

Micklas’s argument that the district court lacked jurisdiction to dismiss his

complaint pursuant to § 1915 because it had not yet ruled on his motion to proceed

in forma pauperis is unavailing. Section 1915 does not state that a court must

grant in forma pauperis status prior to dismissing a case for frivolousness or failure

to state a claim. See 28 U.S.C. § 1915. In fact, it provides that if a court

determines that the action is frivolous, malicious, fails to state a claim or seeks

monetary damages from an immune defendant, the court shall dismiss the case “at

any time.” 28 U.S.C. § 1915(e)(2). The statute further provides that a federal

court action may be commenced or prosecuted upon an affidavit of indigence (not

upon the granting of a motion for in forma pauperis status). See 28 U.S.C.

§ 1915(a)(1).

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Likewise, Micklas’s argument that the district court applied the incorrect

legal standard for § 1915(e)(2)(B) dismissals is meritless. The district court

correctly concluded that it was permitted to dismiss Micklas’s complaint if it failed

to state a claim, and that the Rule 12(b)(6) standard applies. See 28 U.S.C.

§ 1915(e)(2)(B)(ii); Farcass, 112 F.3d at 1490.

As to Micklas’s claims against Judges Phillips, Hazouri, Gerber, and

Conner, we conclude that the district court properly dismissed those claims on

judicial immunity grounds. All actions taken by Judges Phillips, Hazouri, Gerber,

and Conner were taken in their judicial capacity, and Micklas’s conclusory

allegations that they acted without jurisdiction does not establish that they acted in

the “clear absence of jurisdiction.” See Bolin, 225 F.3d at 1239.

With respect to Micklas’s claims against Forman and the unknown Broward

County clerks, the district court erred in concluding that Forman and the clerks

were entitled to Eleventh Amendment immunity because, other than Micklas’s

gross negligence claim against Forman in his official capacity, the complaint is

clear that Micklas is suing Forman and the clerks in their individual capacities.

Jackson, 16 F.3d at 1575 (explaining that state officials sued in their official

capacities are protected by Eleventh Amendment immunity, whereas officials sued

in their individual capacities are not). However, we can affirm on any ground

supported by the record, and we conclude from the record here that Micklas’s

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claims fail to state a plausible claim for relief. Cochran v. United States Health

Care Fin. Admin., 291 F.3d 775, 778 n.3 (11th Cir. 2002).

Micklas brought a § 1983 claim against Forman, and various state law

claims against Forman and the unknown Broward County clerks. Micklas’s

§ 1983 claim alleged that Forman violated Micklas’s procedural due process rights

because someone in the clerk’s office required that he furnish two self-addressed

stamped envelopes before filing a motion for default, which delayed him from

filing the motion before the defendant entered its appearance in the case. Micklas

cannot state a cognizable due process claim because, among other things, he had

no constitutionally-protected liberty interest in being able to file a motion for

default without envelopes or before the defendant entered an appearance. A

review of Micklas’s remaining state law claims against Forman and the unknown

Broward County Clerks for sending him a jury duty summons, requiring him to

pay a case re-opening fee for a post-judgment motion, and for not timely

processing case filings, reveals that they, too, fail to state a plausible claim upon

which relief may be granted. Accordingly, we affirm the district court’s judgment

of dismissal of Micklas’s complaint.

AFFIRMED.