James Darryl Flowers v. Fulton County School System

Case: 15-12220 Date Filed: 06/07/2016 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 15-12220
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-03976-SCJ

JAMES DARRYL FLOWERS,

Plaintiff-Appellant,

versus

FULTON COUNTY SCHOOL SYSTEM,
RONALD WADE,
in his official capacity and individually,
FELIPE USURY,
in his official capacity and individually,
ROBERT AVOSSA,
in his official capacity and individually,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(June 7, 2016)
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Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant James Flowers, represented by counsel, appeals the

district court’s denial of his motion to remand to state court and its grant of the

Fulton County School System1 (“School System”) and Ronald Wade, Felipe

Usury, and Robert Avossa’s (collectively, the “Individual Defendants”) motion to

dismiss his complaint. In his complaint, Flowers, formerly a police officer with

the School System, alleged that he was given a choice to resign or be fired after he

was allegedly seen using his police vehicle to pick up his son from school, in

violation of policy. Flowers chose to resign. After his resignation, the defendants

reported to the Georgia Peace Officer Standards and Training Council (“POST”)

that Flowers had “resigned in lieu of termination,” despite promising Flowers that

they would report only that he had “resigned” (not in lieu of termination). As a

result, according to Flowers, he was unable to continue his career in law

enforcement. Because he resigned, he also was not afforded a due-process hearing.

Flowers asserted against all defendant claims of negligence, breach of

contract, fraud, and intentional infliction of emotional distress under state law, and

a federal 42 U.S.C. § 1983 claim alleging a procedural due-process violation.

After removing the complaint to federal court, the defendants filed a joint motion

1
Appellees identify the School System as the “Fulton County School District.” We use
“School System” in this opinion for consistency with the case caption and the record.
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to dismiss. Flowers moved to remand the case to state court. The district court

granted the motion to dismiss and denied the motion to remand. Flowers now

appeals. After careful review, we affirm.

I.

Flowers first argues that the district court erred by denying his motion to

remand to state court without applying the factors set forth in Ambrosia Coal and

Construction Co. v. Pages Morales, 368 F.3d 1320, 1331 (11th Cir. 2004), to

determine whether abstention was appropriate under the Supreme Court’s decision

in Colorado River Water Conservation District v. United States (Colorado River),

424 U.S. 800, 96 S. Ct. 1236 (1976). He contends that abstention was warranted

based on a substantially similar lawsuit against the School System in state court.

We review a district court’s decision about whether to abstain under the

Colorado River abstention doctrine for an abuse of discretion. See Jackson-Platts

v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1133 (11th Cir. 2013) (reviewing a

dismissal on abstention grounds for an abuse of discretion). A district court abuses

its discretion if it misapplies the law or clearly errs in assessing the evidence. Id.

Generally speaking, federal courts have a “virtually unflagging obligation . .

. to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817–18, 96

S. Ct. at 1246. Nonetheless, federal courts may abstain from a case when (1) a

parallel state proceeding exists and (2) “exceptional” circumstances justify

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abstention. Jackson-Platts, 727 F.3d at 1140. This Court has catalogued six

relevant factors for assessing whether the circumstances qualify as sufficiently

exceptional to justify abstention. See Ambrosia Coal, 368 F.3d at 1331.

The existence of a parallel state proceeding is a “threshold” consideration for

abstention under Colorado River. Jackson-Platts, 727 F.3d at 1140. “[A] federal

court may abstain under the Colorado River doctrine only if there is a parallel state

action, which is one involving substantially the same parties and substantially the

same issues.” Id. (internal quotation marks omitted) (emphasis added). Exact

identity between parties and issues is not required. Ambrosia Coal, 368 F.3d at

1330–31. But “the decision to invoke Colorado River necessarily contemplates

that the federal court will have nothing further to do in resolving any substantive

part of the case.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. (Moses

H. Cone), 460 U.S. 1, 28, 103 S. Ct. 927, 943 (1983).

Here, the district court did not err in refusing to abstain under Colorado

River because the state action was not substantially identical to this case. Flowers

contends that both cases involve the same issue of the defendants’ alleged use of

“coercion and threats” to force resignations without due process. But beyond the

basic fact that both cases involve resignations by employees of the School System,

neither the parties nor the issues in the state action are substantially similar to this

case. Flowers is not a party to, nor does he appear to have any connection with,

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the state action. Moreover, the claims brought in the other action (defamation,

slander, libel, breach of fiduciary duty, and breach of a written settlement

agreement) share only minor similarities with Flowers’s claims in federal court

(fraud, negligence, intentional infliction of emotional distress, due-process

violation, and breach of an alleged oral contract). Overall, Flowers has made no

showing that the state action would have been “an adequate vehicle for the

complete and prompt resolution of the issues between the parties.” Id. As a result,

it would have been a “serious abuse of discretion” for the court to abstain under

Colorado River. Id.

Because the threshold requirement of a parallel state action was not met, the

district court did not need to consider whether exceptional circumstances

warranted abstention, and the court properly denied Flowers’s motion to remand.2

See Jackson-Platts, 727 F.3d at 1140.

II.

Next, Flowers contends that the district court erred by dismissing his

complaint. He asserts that the court improperly assumed facts not in evidence,

erred in finding that qualified immunity barred his claims against the Individual

Defendants in their individual capacities, and erred in determining that several

2
The district court had subject-matter jurisdiction over Flowers’s case based on his
federal § 1983 claim. See 28 U.S.C. §§ 1331, 1441(a).
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claims were time-barred. He also argues that he should have been given at least

one opportunity to amend his complaint.

We review a district court’s grant of a motion to dismiss de novo, accepting

as true the facts alleged in the complaint and drawing all reasonable inferences in

favor of the plaintiff. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). We

likewise review de novo a district court’s application of a statute of limitations.

Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006).

To adequately raise an issue or argument on appeal, the party must identify

and address it in his opening brief; otherwise, the claim is considered abandoned,

and we will not address the merits. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d

1324, 1330 (11th Cir. 2004). Furthermore, “[w]e 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 supporting arguments and authority.” Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

First, the district court properly accepted as true all facts alleged in

Flowers’s complaint, including Flowers’s own assertion that he chose to resign

when given an “ultimatum” that he must either resign or be terminated. Flowers

contends that he resigned in lieu of “alternatives,” not necessarily that he resigned

in lieu of termination, but the allegations in his complaint plainly state that he was

given only one alternative to resignation—termination. The district court

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permissibly drew the only reasonable inference that followed from the facts he

alleged.

The district court also did not err in finding that the County was required to

maintain duplicate personnel records and forward one copy to POST. The relevant

statute provides, “Each law enforcement unit shall prepare duplicate records on

any candidate or peace officer employed under this chapter . . . . [T]he second

copy [of the records] shall be forwarded to the council and shall be maintained by

the council.” O.C.G.A. § 35-8-15(a). POST regulations require employers of

peace officers to inform the POST Council within 15 days of accepting any

resignations in lieu of terminations. See Ga. Comp. R. & Regs. 464-3-.06(a).

Second, Flowers’s argument that the district court erred by dismissing his

individual-capacity claims based on qualified immunity is misplaced. The court

did not resolve any claims on the basis of qualified immunity. Rather, the court

relied on the doctrine of sovereign immunity to dismiss Flowers’s claims against

the School System and the Individual Defendants in their official capacity, but

Flowers has abandoned his challenge to the dismissal of those claims by failing to

raise any argument regarding the district court’s application of sovereign

immunity. See Access Now, Inc., 385 F.3d at 1330. Accordingly, we affirm the

district court’s dismissal of Flowers’s claims against the School System and his

official-capacity claims against the Individual Defendants.

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Third, the district court did not err in determining that Flowers’s individual-

capacity claims of negligence, intentional infliction of emotional distress, and

§ 1983 due process were time-barred. Claims of negligence and intentional

infliction of emotional distress “constitute claims of injury to the individual,” and

therefore are governed by Georgia’s two-year statute of limitations for personal

injury, O.C.G.A. § 9-3-33. M.H.D. v. Westminster Sch., 172 F.3d 797, 803 (11th

Cir. 1999). It is also well-settled that § 1983 claims filed in Georgia are governed

by the same two-year statute of limitations for personal-injury actions. Williams v.

City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). Here, the court found that the

latest date on which Flowers’s claims accrued was November 13, 2012—a finding

Flowers does not challenge—and that he did not file his complaint until December

1, 2014, more than two years later.

While Flowers is correct that a four-year limitations period applies to his

fraud claim, the district court did not dismiss the fraud claim as time-barred.3

Instead, the court found that Flowers had not alleged any false statement, let alone

with the particularity required by Rule 9(b), Fed. R. Civ. P., nor did his allegations

show justifiable reliance. Flowers does not address these determinations, so he has

3
Although the district court stated that it granted “Defendants’ motion to dismiss
Plaintiff’s fraud . . . claim[] as time-barred under O.C.G.A. § 9-3-33,” in addition to the other
claims, the court’s reference to the fraud claim appears to be no more than a clerical error, as the
court separately addressed the merits of the fraud claim later in its order.
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abandoned his challenge to the dismissal of his individual-capacity fraud claim.

See Access Now, Inc., 385 F.3d at 1330.

Flowers’s remaining claim is for breach of an oral contract. The district

court concluded that the alleged contract was unenforceable because it violated

public policy. In his brief on appeal, Flowers asserts that the court erred in writing

“that a resignation as stated by Appellant would have been unlawful and against

public policy,” but that assertion is as far as his argument goes. Such a passing

reference, without supporting arguments and authority, is insufficient to raise the

issue for review. See Sapuppo, 739 F.3d at 681. Moreover, the Georgia Court of

Appeals has found that a similar contract was void for illegality. See Maner v.

Chatham Cty., 540 S.E.2d 248, 249-50 (Ga. Ct. App. 2000) (purported contract to

not report the plaintiff’s resignation to POST to preserve the plaintiff’s POST

certification was void and unenforceable). Consequently, we affirm the dismissal

of Flowers’s individual-capacity breach-of-contract claim.

Finally, the district court was not required to grant Flowers leave to amend

sua sponte because Flowers, who was represented by counsel, “never filed a

motion to amend nor requested leave to amend before the district court.” Wagner

v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).

For the reasons stated, we AFFIRM the dismissal of Flowers’s complaint.

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