USCA11 Case: 22-13157 Document: 10-1 Date Filed: 05/10/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13157
Non-Argument Calendar
____________________
ROBERT ALLEN AUSTIN,
Plaintiff-Appellant,
versus
JAMES WALTER MCCANN,
ELIZABETH ROSE MCHUGH,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cv-14225-AMC
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2 Opinion of the Court 22-13157
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Before NEWSOM, GRANT, and MARCUS, Circuit Judges.
PER CURIAM:
Robert Austin, proceeding pro se, appeals the dismissal with
prejudice of his civil rights complaint against Florida Circuit Court
Judge James Walter McCann and Hearing Officer Elizabeth Rose
McHugh. He argues that: (1) Judge McCann and Hearing Officer
McHugh violated his rights by conducting a hearing in a family law
proceeding that Austin was involved in, setting a date by which
Austin was to pay attorney’s fees that he owed his ex-wife, ordering
him to be held in civil contempt if he did not pay, and, when he did
not pay the fees by the set date, enforcing the civil contempt order
against him; and (2) Judge McCann and Hearing Officer McHugh
are not protected by judicial immunity because his proceeding
lacked a “civil cover sheet” and they denied him his Fourteenth
Amendment right to due process. After careful review, we affirm.
We review an order granting a motion to dismiss for failure
to state a claim de novo, accepting the allegations in the complaint
as true and construing them in the light most favorable to the plain-
tiff. Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005). We re-
view a district court’s decision to deny leave to amend for abuse of
discretion. Woldeab v. DeKalb Cnty. Bd. of Educ., 885 F.3d 1289,
1291 (11th Cir. 2018).
Judges enjoy absolute judicial immunity when they act in
their judicial capacity so long as they do not act “in the clear
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22-13157 Opinion of the Court 3
absence of all jurisdiction.” Sibley, 437 F.3d at 1070 (quotations
omitted). “This immunity applies even when the judge’s acts are
in error, malicious, or were in excess of his or her jurisdiction.” Id.
(quotations omitted). A judge acts in his or her judicial capacity by
performing normal judicial functions, in chambers or open court,
in cases pending before the judge. Id. In Sibley, the petitioner
brought a civil rights action against the Florida judges who impris-
oned him due to his failure to pay child support as ordered. Id. at
1069–70. The district court dismissed Sibley’s complaint for failure
to state a viable claim on the ground that the state court judges
were entitled to absolute judicial immunity, and, on appeal, we af-
firmed. Id. at 1069–73.
Absolute immunity “flows not from rank or title or location
within the Government, but from the nature of the responsibilities
of the individual official.” Stevens v. Osuna, 877 F.3d 1293, 1301–
02 (11th Cir. 2017) (quotations omitted). We apply a “functional
approach” to determine whether an official is entitled to absolute
immunity based on factors like:
(a) the need to assure that the individual can perform
his functions without harassment or intimidation;
(b) the presence of safeguards that reduce the need
for private damages actions as a means of controlling
unconstitutional conduct; (c) insulation from political
influence; (d) the importance of precedent; (e) the ad-
versary nature of the process; and (f) the correctabil-
ity of error on appeal.
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4 Opinion of the Court 22-13157
Id. at 1302. We’ve noted that absolute immunity has been ex-
tended beyond Article III judges to state court judges, administra-
tive law judges and federal hearing examiners, federal and state
prosecutors, grand jurors, and witnesses testifying in judicial pro-
ceedings. Id.
Hearing officers in Florida child support proceedings are ap-
pointed by the chief judge of the judicial circuit and are empowered
to “issue process, administer oaths, require the production of doc-
uments, and conduct hearings for the purpose of taking evidence.”
Fla. Fam. L. R. P. 12.491(c), (e). Upon receipt of a support proceed-
ing, a hearing officer shall, inter alia, “evaluate the evidence and
promptly make a recommended order to the court.” Fla. Fam. L.
R. P. 12.491(e)(4).
Under the Federal Rules, leave to amend a complaint that is
requested after a responsive pleading has been filed shall be freely
given “when justice so requires.” Fed. R. Civ. P. 15(a). This rule
“severely restricts” a district court’s discretion to dismiss a com-
plaint without first granting leave to amend. Sibley, 437 F.3d at
1073 (quotations omitted). “Where a more carefully drafted com-
plaint might state a claim, a plaintiff must be given at least one
chance to amend the complaint before the district court dismisses
the action with prejudice.” Woldeab, 885 F.3d at 1291 (quotations
omitted). Nevertheless, “a district court may dismiss when such
amendment would be futile.” Sibley, 437 F.3d at 1073. In Sibley,
we held that the district court did not abuse its discretion in deny-
ing Sibley leave to amend his complaint, since the defendants
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22-13157 Opinion of the Court 5
would still have had judicial immunity from his proposed amended
claims. Id. at 1074.
Florida Family Law Rule of Procedure 12.100 provides the
requirements for pleadings, motions, and captions in Florida family
court cases. Fla. Fam. L. R. P. 12.100. The rule provides that:
A cover sheet for family court cases (form 12.928)
must be completed and filed with the clerk at the time
a complaint or petition is filed by the party initiating
the action. If the cover sheet is not filed, the clerk
must accept the complaint or petition for filing; but
all proceedings in the action must be abated until a
properly executed cover sheet is completed and filed.
The clerk must complete the cover sheet for a party
appearing pro se.
Fla. Fam. L. R. P. 12.100(c)(3). Form 12.928 contains the instruc-
tions for cover sheets. Fla. Fam. L. R. P. 12.928.
A party fails to adequately present an issue on appeal “when
he does not plainly and prominently raise it, for instance by devot-
ing a discrete section of his argument to th[at] claim[].” Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014)
(quotations omitted). Similarly, an appellant abandons an issue
when he makes only passing references to it or raises it in a per-
functory manner without supporting arguments and authority. Id.
An issue is also abandoned when passing references appear in the
argument section of an opening brief, but the references are “mere
background to the appellant’s main arguments” or “they are buried
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6 Opinion of the Court 22-13157
within those arguments.” Id. at 682 (quotations omitted). While
we “read briefs filed by pro se litigants liberally, issues not briefed
on appeal by a pro se litigant are deemed abandoned.” Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (citation omitted).
Here, the district court did not err in dismissing Austin’s
complaint because Judge McCann and Hearing Officer McHugh
were entitled to absolute judicial immunity in this lawsuit. For
starters, Austin does not dispute that Hearing Officer McHugh
could be entitled to absolute immunity by virtue of her appoint-
ment as a hearing officer. Further, the district court correctly de-
termined that the actions Austin challenged were clearly judicial in
nature -- including that Judge McCann and Hearing Officer
McHugh had conducted a hearing in a family law proceeding that
Austin was involved in, set a date by which Austin was to pay at-
torney’s fees that he owed his ex-wife, ordered him to be held in
civil contempt if he did not pay, and, when he did not pay the fees
by the set date, enforced the civil contempt order against him.
Because Austin offers nothing to suggest that these actions
were not judicial in nature, Judge McCann and Hearing Officer
McHugh were entitled to judicial immunity unless they acted “in
the clear absence of all jurisdiction.” Sibley, 437 F.3d at 1070 (quo-
tations omitted). Austin claims that Judge McCann and Hearing
Officer McHugh acted “in the clear absence of all jurisdiction” be-
cause they held a hearing on the civil contempt motion filed against
him by his ex-wife and enforced a civil contempt order without
completing a certain cover sheet he deems necessary to the
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22-13157 Opinion of the Court 7
process. However, the cover sheet Austin refers to is required only
to initiate a lawsuit, not to file a motion, and there is nothing in
Florida’s rules suggesting that the failure to prepare a civil cover
sheet has any bearing on the court’s jurisdiction. See Fla. Fam. L.
R. P. 12.100, 12.298. Nor does Austin’s allegation that he was de-
nied due process -- which is belied by the record -- establish a com-
plete lack of jurisdiction. Because Austin’s claim is based entirely
on actions that were part of a judge’s normal judicial functions, and
the record does not reflect “the clear absence of all jurisdiction,”
the district court correctly decided that Judge McCann and Hearing
Officer McHugh were entitled to absolute judicial immunity. See
Sibley, 437 F.3d at 1069–73.
It’s also worth noting that Austin has abandoned any argu-
ment that the district court abused its discretion in dismissing his
complaint with prejudice, since Austin does not raise this issue on
appeal. See Sapuppo, 739 F.3d at 681. In any event, the district
court did not abuse its discretion by not giving Austin the chance
to amend before dismissing the case with prejudice. As the record
makes clear, Austin’s claim against Judge McCann and Hearing Of-
ficer McHugh, even if amended, would still be barred by judicial
immunity, and, thus, any amendment would have been futile. Si-
bley, 437 F.3d at 1074. Accordingly, we affirm.
AFFIRMED.