USCA11 Case: 22-12960 Document: 42-1 Date Filed: 02/23/2024 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12960
Non-Argument Calendar
____________________
BERNIE QUARTERMAN,
Plaintiff-Appellant,
versus
CITY OF WALTHOURVILLE, GEORGIA,
MAYOR DAISY S. PRAY,
MELISSA JONES,
JEFFERY ARNOLD,
ANDREW JOHNSON,
In Their Individual Capacities,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-12960
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cv-00006-WTM-BWC
____________________
Before WILSON, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
Bernie Quarterman, former Chief of Police for the City of
Walthourville, Georgia (the “City”), proceeding pro se, appeals the
district court’s dismissal with prejudice of his pro se fifth amended
complaint alleging claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., the Fair Labor Standards Act, and
various Fourteenth Amendment violations brought under 42
U.S.C. § 1983. These claims were asserted against former City
Mayor Daisy S. Pray, former City Clerk Melissa Jones, and former
City attorneys Jeffrey Arnold and Andrew Johnson, all in their offi-
cial and individual capacities, as well as against the City itself.
After careful consideration, we AFFIRM the district court’s
order dismissing the complaint with prejudice.
I
We first address the Title VII, FLSA, and § 1983 claims that
Quarterman brought against defendants Pray, Jones, Arnold, and
Johnson in their official capacities. The district court dismissed
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22-12960 Opinion of the Court 3
these claims because they were redundant of Quarterman’s claims
against the City.
We need not reach the merits here because Quarterman
failed to challenge this dismissal on appeal and has therefore aban-
doned the claims.
Generally, issues not raised in an initial brief are considered
abandoned and will not be addressed absent extraordinary circum-
stances. Anthony v. Georgia, 69 F.4th 796, 807 (11th Cir. 2023). Alt-
hough allegations of a pro se complaint are liberally construed,
“this leniency does not give a court license to serve as de facto coun-
sel for a party, or to rewrite an otherwise deficient pleading in order
to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165,
1168–69 (11th Cir. 2014) (quotation marks omitted). Likewise, this
leniency toward pro se parties does not alter the general principle
that issues not raised below are generally not considered on appeal.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
And while this rule is not “ironclad,” we will generally only con-
sider exercising our discretion to consider a newly-raised or aban-
doned issue when
(1) the issue involves a pure question of law and re-
fusal to consider it would result in a miscarriage of
justice; (2) the party lacked an opportunity to raise
the issue at the district court level; (3) the interest of
substantial justice is at stake; (4) the proper resolution
is beyond any doubt; or (5) the issue presents signifi-
cant questions of general impact or great public con-
cern.
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4 Opinion of the Court 22-12960
United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (citing
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th
Cir. 2004)).
By failing to challenge on appeal the district court’s dismissal
of his Title VII, FLSA, and 42 U.S.C. § 1983 official-capacity claims
against Pray, Jones, Arnold, and Johnson, Quarterman has aban-
doned any such challenges. Accordingly, we affirm the district
court’s dismissal of those claims.
II
We next address the individual-capacity Title VII retaliation
claims against Pray, Jones, Arnold, and Johnson and the Title VII
retaliation claim against the City. The district court dismissed
these claims because individual-capacity claims are not allowed un-
der Title VII.
But we need not reach the merits of Quarterman’s individ-
ual-capacity Title VII retaliation claims against Pray, Jones, Arnold,
and Johnson because he abandoned them on appeal. He failed to
(1) respond to the defendants’ arguments related to Title VII indi-
vidual liability in the district court, and (2) argue in his initial brief
on appeal that the defendants are individually liable. Anthony, 69
F.4th at 807.
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22-12960 Opinion of the Court 5
Quarterman similarly abandoned his Title VII retaliation
claim brought against the City because he conceded below that he
intended for it to be cast as an 18 U.S.C. § 1513 claim. 1
Accordingly, we affirm as to these issues.
III
Quarterman next appeals the dismissal of his individual-ca-
pacity FLSA claims and his FLSA overtime and retaliation claims
brought against the City.
Under the FLSA, to state a valid unpaid-overtime claim
against a covered employer, an employee bears the initial burden
of showing that (1) he worked unpaid overtime, and (2) his em-
ployer knew or should have known of the overtime work. Bailey
v. TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015). To
state a valid retaliation claim under the FLSA against a covered em-
ployer, an employee bears the initial burden of establishing a prima
facie case of FLSA retaliation by showing that (1) he engaged in
activity protected under the act, (2) he subsequently suffered ad-
verse action by his employer, and (3) a causal connection existed
between the protected activity and the adverse employment ac-
tion. Smith v. Haynes & Haynes P.C., 940 F.3d 635, 648 (11th Cir.
1 To the extent that Quarterman, by making new arguments in his brief on
appeal, asks us to consider those new arguments about this claim, we decline.
Although we have the discretion to consider issues raised for the first time on
appeal in certain circumstances, here, Quarterman had more than ample op-
portunity in the district court to make the arguments and chose not to do so.
See Tannenbaum, 148 F.3d at 1263.
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6 Opinion of the Court 22-12960
2019). For liability-establishing purposes, “a public official sued in
his individual capacity is not an ‘employer’ subject to individual li-
ability under the FLSA.” Austin v. Glynn Cnty., Georgia, 80 F.4th
1342, 1346 (11th Cir. 2023) (quotation marks omitted).
The FLSA also, in part, makes it unlawful “to discharge or in
any manner discriminate against any employee because such em-
ployee has filed any complaint or instituted or caused to be insti-
tuted any proceeding under or related to [Chapter 8 of the FLSA].”
29 U.S.C. § 215(a)(3).
Under Chapter 15 of Title 29 of the United States Code, the
Occupational Safety and Health (“OSH”) Act, in part, makes it un-
lawful to “discharge or in any manner discriminate against any em-
ployee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to
[Chapter 15 of the OSH Act].” 29 U.S.C. § 660(c)(1).
A
Here, as an initial matter, Quarterman has abandoned his
individual-capacity FLSA overtime and retaliation claims against
Jones, Arnold, and Johnson by failing to argue in his initial brief that
they were individually liable under the FLSA. Accordingly, we af-
firm the district court’s dismissal of Quarterman’s
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22-12960 Opinion of the Court 7
individual-capacity FLSA overtime and retaliation claims against
Jones, Arnold, and Johnson.2
Quarterman did argue on appeal that defendant Pray should
be held individually liable because she qualified as an “employer”
under the FLSA. But Pray is correct that she is not an employer
within the meaning of the FLSA. We recently clarified that public
officials—such as Pray, the City’s former mayor—sued in their in-
dividual capacities are not employers within the meaning of the
FLSA such that they may be subject to individual liability. Austin,
80 F.4th at 1346. We therefore affirm the district court’s dismissal
of this claim.
B
Quarterman’s claims for FLSA overtime and retaliation
against the City similarly fail.
As to his FLSA overtime claim, the City is correct that Quar-
terman’s fifth amended complaint contained no more than unsub-
stantiated conclusions insufficient to state a valid FLSA overtime
claim. In his fifth amended complaint, he simply states that the
City is (1) an employer, (2) non-exempt under the FLSA, (3) failed
to pay overtime, and (4) failed to keep timesheets of actual hours
worked, which he asserted was in bad faith. He neither alleged that
2 Jones, Arnold, and Johnson argue on appeal that they are not employers un-
der the FLSA and thus not subject to individual liability. We need not reach
the merits of this argument.
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8 Opinion of the Court 22-12960
he had worked overtime, nor did he attach any factual support such
that those attachments may have permitted him to state a plausible
FLSA overtime claim and thus survive a motion to dismiss. Absent
further factual enhancement, his FLSA overtime claim in his fifth
amended complaint did not plausibly state a claim sufficient to sur-
vive a motion to dismiss. 3
Quarterman’s FLSA retaliation claim also fails. Even liber-
ally construing this claim, it fails to state a plausible claim of FLSA
retaliation because the act of filing an OSH Act whistleblower com-
plaint is not a protected activity under the FLSA. 29 U.S.C.
§ 215(a)(3); 29 U.S.C. § 660(c)(1).
Accordingly, we affirm the district court’s dismissal of his
FLSA overtime and retaliation claims.
IV
Finally, we address Quarterman’s due process claim.
The Due Process Clause of the Fourteenth Amendment pro-
vides that no State shall “deprive any person of life, liberty, or prop-
erty, without due process of law.” U.S. Const. amend. XIV.
3 Quarterman argues that his pleadings should be liberally construed and held
to a less stringent standard because he is pro se. He is correct that this is how
we construe pro se pleadings. But pro se pleadings cannot escape the require-
ments set out in Twombly and Iqbal. All litigants, whether counseled or pro se,
must provide enough factual content to allow a district court to draw a rea-
sonable inference that the defendant is plausibly liable for the alleged miscon-
duct. Marquez v. Amazon.com, 69 F.4th 1262, 1269 (11th Cir. 2023).
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22-12960 Opinion of the Court 9
Section 1983 holds any person acting under color of state law liable
for depriving another person of a federal right. 42 U.S.C. § 1983.
To bring a due process claim under Section 1983, a plaintiff
must establish “(1) deprivation of a constitutionally-protected lib-
erty or property interest; (2) state action; and (3) constitution-
ally-inadequate process.” Resnick v. KrunchCash, LLC, 34 F.4th 1028,
1035 (11th Cir. 2022) (quotation marks omitted). As to the third
element, assuming a plaintiff has shown a deprivation of some right
protected by the due process clause of the Fourteenth Amend-
ment, we look “to whether the available state procedures were ad-
equate to correct the alleged procedural deficiencies.” Cotton v.
Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000). “If adequate state
remedies were available but the plaintiff failed to take advantage of
them, the plaintiff cannot rely on that failure to claim that the state
deprived him of procedural due process.” Id.
Georgia law provides that, if no remedy at law exists and a
party has a right to the performance of an act, the party is entitled
to seek a writ of mandamus through the state courts. O.C.G.A. §
9-6-20. A writ of mandamus is an adequate remedy to protect a
plaintiff’s right to have a name-clearing hearing. Cotton, 216 F.3d
at 1332–33.
Quarterman failed to sufficiently allege in his fifth amended
complaint that he had no adequate state remedy to address the
City’s alleged Fourteenth Amendment violations. 4 For this reason,
4 Once again, Quarterman appears to raise new arguments on appeal—
namely, a substantive due process claim. To the extent that by including this
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10 Opinion of the Court 22-12960
we decline to reach the merits of the parties’ various arguments on
appeal about whether Quarterman did or did not have constitu-
tionally-protected liberty or property interests. Under Georgia
law, a writ of mandamus was available to Quarterman, and such a
remedy was adequate to protect his constitutional rights. O.C.G.A.
§ 9-6-20; Cotton, 216 F.3d at 1332–33. Thus, even if the City de-
prived Quarterman of his constitutional rights, he was entitled to
seek a writ of mandamus to require a new hearing to remedy any
constitutional deprivations. His failure to seek such a state court
remedy barred his § 1983 claims, and the district court did not err
in dismissing those claims for failure to state a claim. See Resnick,
34 F.4th at 1035.
For the reasons discussed above, we affirm the district
court’s dismissal with prejudice of Quarterman’s fifth amended
complaint.
AFFIRMED.
in his initial brief, Quarterman requests that we consider this new argument,
we decline to do so. He had ample opportunity in the district court to make
the argument he now makes, and no circumstances warrant us considering it
for the first time on appeal. See Campbell, 26 F.4th at 873.