Case: 16-10144 Date Filed: 12/05/2016 Page: 1 of 21
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10144
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-00959-MHT-PWG
WINDHAM TODD PITTMAN,
Plaintiff - Appellant,
versus
STATE FARM FIRE & CASUALTY COMPANY,
PAT CRAIG,
TERESA SPENCE,
EUGENE CAMPBELL,
BERT SHEFFIELD NETTLES, et al.,
Defendants – Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(December 5, 2016)
Case: 16-10144 Date Filed: 12/05/2016 Page: 2 of 21
Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Windham Todd Pittman filed a lawsuit against State Farm Fire and Casualty
Insurance Company (“State Farm”), Pat Craig, Teresa Spence, Eugene Campbell,
and others alleging, among other claims, violations of his civil rights under 28
U.S.C. § 1983. Pittman’s claims arise out of the aftermath of an alleged robbery at
his home. Following the alleged robbery, Pittman filed an insurance claim with his
insurer, State Farm. After performing an investigation into the claim, State Farm
concluded that Pittman’s claim was fraudulent and denied the claim. Criminal
charges were filed against Pittman. Generally, Pittman claimed that the defendants
entered into a conspiracy to pursue criminal charges against him after he filed his
insurance claim, overlooking evidence that he was not involved in the burglary.
Pittman ultimately brought four claims against State Farm, Craig, Spence,
and Campbell in an Amended Complaint containing over three-hundred numbered
paragraphs. As relevant to this appeal, Count One alleged a violation of Pittman’s
Fourth Amendment rights pursuant to 28 U.S.C. § 1983, and Count Two alleged a
violation of Pittman’s Fifth Amendment rights. In Counts Three and Four, Pittman
brought state-law claims for malicious prosecution and defamation. On motions to
dismiss, the district court dismissed with prejudice the federal civil-rights claims
set forth in Counts One and Two. The district court also dismissed without
2
Case: 16-10144 Date Filed: 12/05/2016 Page: 3 of 21
prejudice the state-court claims, allowing Pittman to re-file these claims in state
court.
After careful consideration, we affirm the district court’s order dismissing
the Amended Complaint.
I.
On July 4, 2010, Pittman and his family returned from vacation and found
that their home had been burglarized. Pittman reported the incident to the police
and to State Farm, the company that insured Pittman’s home and its contents.
More than seventy pieces of art, various pieces of expensive jewelry, guns, and a
computer had been taken from the Pittman home. Pittman reported the value of the
missing items to be approximately $500,000.
State Farm found the insurance claim to be suspicious and assigned Craig,
an investigator with its Special Investigations Unit, to review the claim. 1 After
conducting an investigation, on April 11, 2011, State Farm concluded that Pittman
was involved in the alleged burglary and had fraudulently reported the items as
stolen, so it denied his claim.
Pittman sued State Farm for bad faith and breach of contract shortly before
State Farm denied his claim. The district court resolved the case in favor of State
1
State Farm noted that Pittman’s company was in the middle of a Chapter 11 bankruptcy,
Pittman had been sued on the individual guarantee of certain debts of the company for more than
$700,000, and Pittman had only recently increased his homeowner’s insurance coverage before
going on vacation.
3
Case: 16-10144 Date Filed: 12/05/2016 Page: 4 of 21
Farm, Pittman v. State Farm Fire & Cas. Co., 868 F. Supp. 2d 1335 (M.D. Ala.
2012), and, on appeal, this Court upheld the decision of the district court. See
Pittman v. State Farm Fire & Cas. Co., 519 F. App’x 656 (11th Cir. 2013).
At some point during State Farm’s investigation of the insurance claim,
Craig met with Pittman’s former mistress, Defendant Teresa Spence.2 At one of
their meetings, Spence told Craig that “she had come into possession” of some of
the items missing from Pittman’s home. Craig is alleged to have recorded the
meeting with Spence, but he did not produce the recording in the course of
Pittman’s prior litigation against State Farm. The Amended Complaint asserts that,
following the meeting between Craig and Spence, State Farm agreed not to
prosecute Spence if she agreed to blame the burglary on Pittman and to cooperate
in State Farm’s prosecution of Pittman.
Pittman further contends that State Farm and Craig introduced Spence to
Defendant Eugene Campbell, a deputy with the Geneva County, Alabama,
Sheriff’s Office, despite knowing of her involvement with the burglary. 3 In the
meantime, Spence allegedly told Pittman’s current girlfriend, Heather Ledbetter,
that Pittman’s lost artwork was about to be located by police in a storage unit in
2
According to the Amended Complaint, Spence framed Pittman for the burglary because
he had terminated their long-term relationship. Spence claims that she was not involved in the
burglary and contends that Pittman named her as a defendant in the lawsuit as revenge for
disclosing to State Farm her knowledge of Pittman’s involvement in the alleged burglary.
3
Pittman claims that, at some point, Spence and Campbell began a personal relationship.
4
Case: 16-10144 Date Filed: 12/05/2016 Page: 5 of 21
Brantley, Alabama. Following the conversation, Heather4 called her father, Ronnie
Ledbetter, to relay the information provided by Spence. Heather asked her father
to contact State Farm, so the company could recover the property. Ronnie
subsequently went to a State Farm office and, as a result, Craig later met him and
encouraged him to speak with Deputy Campbell, which Ronnie did.
After speaking with Spence and Ronnie, Campbell executed an affidavit in
support of a search warrant for a storage unit in Brantley. 5 Pittman asserts that
generating false probable cause for the search warrant was Spence’s aim when she
spoke with Campbell and Heather. As a result of the execution of the search
warrant, many of the items reported stolen by Pittman were found in the storage
unit. Additional items belonging to Pittman were found in the storage unit, along
with the items listed as missing in the insurance claim.
Following the search of the storage unit, Pittman was arrested and indicted
for attempted theft of property in the first degree. Throughout the criminal case
and the investigation leading up to it, the facts of Pittman’s alleged involvement
were publicized over the radio, television broadcasts, on the internet, and in print
media.
4
We refer to the Ledbetters by their first names to avoid confusion.
5
The storage unit was registered under an alias, and the payment of rent and submission
of the registration took place through a drop box so that the owners of the unit were unable to
verify the identity of the person who rented the unit.
5
Case: 16-10144 Date Filed: 12/05/2016 Page: 6 of 21
The criminal case against Pittman ended in a dismissal. The charges were
ultimately dropped after Pittman entered into an agreement with the prosecutor and
agreed to pay court costs.
Pittman filed the underlying lawsuit alleging a violation of his civil rights,
malicious prosecution, and defamation. Throughout the Amended Complaint,
Pittman alleges that Spence admitted to being in possession of Pittman’s stolen
property after the burglary and that Campbell, Craig, and State Farm were aware of
this information.
Finding that Pittman failed to state a claim under Rule 12(b)(6), Fed. R. Civ.
P., the district court dismissed the Section 1983 claims with prejudice and the state
claims without prejudice to re-file in state court. We agree and affirm.
II.
We review de novo a district court’s dismissal of a complaint for failure to
state a claim under Rule 12(b)(6), “accepting the allegations in the complaint as
true and construing them in the light most favorable to the plaintiff.” Ironworkers
Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th Cir. 2011)
(quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010)).
We need not accept as true allegations in a complaint that are merely legal
conclusions. Ashcroft v. Iqbal, 556 U.S. 678, 663, 129 S. Ct. 1937, 1949 (2009).
Plaintiffs must provide the grounds for entitlement to relief; mere “labels and
6
Case: 16-10144 Date Filed: 12/05/2016 Page: 7 of 21
conclusions,” or a “formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974
(2007). To survive a motion to dismiss, plaintiffs must allege sufficient facts to
push their “claims across the line from conceivable to plausible.” Am. Dental
Ass’n, 605 F.3d at 1289 (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).6
III.
After careful review of the 304 paragraphs of allegations against the
defendants, we conclude that the district court properly dismissed the Amended
Complaint.
A. Shotgun Pleading
To begin with, Pittman’s Amended Complaint constitutes a classic “shotgun
pleading” because each count reincorporates by reference all preceding paragraphs
of the Amended Complaint. We have “roundly, repeatedly, and consistently
condemn[ed]” shotgun pleadings. See Davis v. Coca–Cola Bottling Co. Consol.,
516 F.3d 955, 979 (11th Cir. 2008). A complaint is a shotgun pleading when it is
“virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief.” Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996). A pleading drafted in this manner “is in
6
Although Pittman devotes approximately eight pagers of his Initial Brief to urging us to
take positions inconsistent with the holdings of both Iqbal and Twombly, we decline. We must
adhere to these cases, as they are binding Supreme Court precedent.
7
Case: 16-10144 Date Filed: 12/05/2016 Page: 8 of 21
no sense the ‘short and plain statement of the claim’ required by Rule 8[(a)(2),
Fed. R. Civ. P.],” and “completely disregards Rule 10(b)’s requirement that
discrete claims should be plead in separate counts.” Magluta v. Samples, 256 F.3d
1282, 1284 (11th Cir. 2001) (per curiam).
Here, Pittman presented 262 paragraphs containing general allegations in his
Amended Complaint. He then set forth four counts against the defendants. In each
count, however, Pittman realleged “all prior paragraphs as if set out here in full.”
The Amended Complaint is a quintessential shotgun pleading since it
“incorporate[s] every antecedent allegation by reference into each subsequent
claim for relief or affirmative defense.” Wagner v. First Horizon Pharm. Corp.,
464 F.3d 1273, 1279 (11th Cir. 2006) (citing Magluta, 256 F.3d at 1284)). But
even overlooking that problem, the district court did not err in granting the
defendants’ motions to dismiss.
B. Waiver
While the Amended Complaint contains two state claims—claims for
malicious prosecution and defamation—those claims are not at issue in this appeal.
As is clear by now, “a legal claim or argument that has not been briefed before the
court is deemed abandoned and its merits will not be addressed.” Access Now, Inc.
v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). An issue is likewise
considered abandoned when “a party seeking to raise a claim or issue on appeal
8
Case: 16-10144 Date Filed: 12/05/2016 Page: 9 of 21
[fails to] plainly and prominently so indicate.” United States v. Jernigan, 341 F.3d
1273, 1284 n. 8 (11th Cir. 2003).
Pittman has not raised as error the district court’s dismissal of the state-court
claims, so we do not address them. As the district court noted, Counts Three and
Four of the Amended Complaint—the state-court claims—were “dismissed
without prejudice, and with leave to refile in state court.” Accordingly, Pittman is
free to refile his malicious-prosecution and defamation claims in state court.
C. Pittman’s Civil Rights Claims
The two counts at the center of this appeal are Counts One and Two of the
Amended Complaint—Pittman’s civil-rights claims brought pursuant to Section
1983. 7 We address each in turn.
1. Count One
In Count One, Pittman attempts to set forth a conspiracy claim against the
defendants under the Fourth Amendment to the Constitution. Pittman alleges that
Deputy Campbell “used fabricated probable cause to obtain a search warrant for
the Brantley storage Unit where the stolen artwork was recovered.” The Amended
Complaint continues, asserting that Deputy Campbell bolstered the probable cause
affidavit with false statements attributed to other defendants. Next, Pittman alleges
7
Pittman’s Initial Brief makes clear that only the first two counts of the Amended
Complaint—those alleging violations of the Fourth and Fifth Amendments—are intended to
allege federal claims for an alleged violation of his civil rights under § 1983.
9
Case: 16-10144 Date Filed: 12/05/2016 Page: 10 of 21
that Deputy Campbell “used this falsified probable cause to obtain the search
warrant for the storage unit in Brantley, Alabama where he unsurprisingly located
the stolen items placed there by Spence or someone working on her behalf and at
her direction to frame Pittman.” Pittman concluded, “[t]hese acts violate the 4th
Amendment’s protections against obtaining search warrants illegally.”
All of the allegations supporting the Fourth Amendment claim appear to
relate to an alleged improper search and seizure of items in the storage unit. But
conspicuously absent from the Amended Complaint is any allegation that Pittman
owned the storage unit or had any expectation of privacy with respect to the unit.
To the contrary, the facts as pled by Pittman imply that the storage unit did not
belong to him and, instead, belonged to Spence, the person who allegedly stole the
artwork from his home. And, as a practical matter, Pittman could not allege an
ownership interest in the storage unit since such a fact would implicate him in the
burglary.
Pittman’s lack of ownership or other interest in the storage unit is fatal to his
Fourth Amendment claim. As the Supreme Court has stated, “in order to claim the
protection of the Fourth Amendment, a defendant must demonstrate that he
personally has an expectation of privacy in the place searched, and that his
expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469,
472 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 140 99 S. Ct. 421 (1978)).
10
Case: 16-10144 Date Filed: 12/05/2016 Page: 11 of 21
Although lack of ownership of the place searched is not dispositive, the person
alleging a Fourth Amendment violation must have some relationship with the place
searched in order to assert an expectation of privacy. See Carter, 119 S. Ct. at 474;
United States v. Segura-Baltazar, 448 F.3d 1281, 1285 (11th Cir. 2006) (Fourth
Amendment claim requires an invasion of the plaintiff’s reasonable expectation of
privacy).
Here, Pittman failed to allege any privacy interest in the storage unit or any
connection at all to the unit. Pittman’s failure to allege any privacy interest in the
storage unit is fatal to his claim. Accordingly, the district court did not err when it
dismissed Count One of the Amended Complaint. And, while the district court did
not dismiss Count One on these grounds, we may affirm a judgment based on any
grounds supported by the record. Akanthos Capital Mgmt., LLC v. Atlanticus
Holdings Corp., 734 F.3d 1269, 1271 (11th Cir. 2013) (per curiam) (citation
omitted).
To the extent Count One may be construed to include a claim for unlawful
arrest and detention, dismissal of the claim is likewise warranted. First, Pittman
waived any argument that State Farm conspired with the other defendants to
violate his Fourth Amendment rights because he failed to challenge the district
court’s dismissal in this regard. See Access Now, 385 F.3d at 1330. On appeal,
Pittman focuses on the individual private actors’ roles in the alleged conspiracy
11
Case: 16-10144 Date Filed: 12/05/2016 Page: 12 of 21
and fails to discuss the separate standard applicable to corporations facing § 1983
claims. To the extent Pittman’s claim against State Farm was not waived, we find
the district court’s dismissal of the claim to be appropriate. A private corporation
“may be liable under § 1983 if it is established that the constitutional violation was
the result of the corporation’s policy or custom.” Harvey v. Harvey, 949 F.2d
1127, 1129-30 (11th Cir. 1992). The Amended Complaint is devoid of any
allegations that State Farm had a “policy or custom” to deprive its policyholders of
their constitutional rights. Thus, dismissal with prejudice with respect to State
Farm was warranted.
Pittman’s Fourth Amendment conspiracy claims against the private
individuals fare no better. In order to establish a Section 1983 claim, Pittman must
show that he “was deprived of a federal right by a person acting under color of
state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
“[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely
private conduct, no matter how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985 (1999) (citations omitted).
We have held, in order to find private parties to be state actors, one of three
tests must be met: (1) the State has coerced or at least significantly encouraged the
action alleged to violate the Constitution (“the state compulsion test”); (2) the
private parties performed a public function that was traditionally the exclusive
12
Case: 16-10144 Date Filed: 12/05/2016 Page: 13 of 21
prerogative of the State (“public function test”); or (3) “the State had so far
insinuated itself into a position of interdependence with the [private parties] that it
was a joint participant in the enterprise[]” (“nexus/joint action test”). Hogue, 241
F.3d at 1347 (citing NBC, Inc. v. Communications Workers of America, 860 F.2d
1022, 1026–27 (11th Cir.1988)); see also Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003). Because Pittman alleged a
conspiracy between the defendants, the nexus/joint action test is most applicable.
A conspiracy to violate another person’s constitutional rights violates
Section 1983. Rowe v City of Ft. Lauderdale, 279 F.3d 1271 (11th Cir. 2002)
(citations omitted). “[T]he acts of a private party are fairly attributable to the state
on certain occasions when the private party acted in concert with state actors.”
Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990) (citation omitted). In
order to establish a § 1983 conspiracy, a plaintiff must show that the defendants
“reached an understanding to violate [his] rights.” Id. at 1283 (citation omitted).
While a plaintiff need not come forward with a “smoking gun” to show an
understanding, he must “show some evidence of agreement between the
defendants” and willful participation. Id. (citation omitted) “The linchpin for
conspiracy is agreement, which presupposes communication.” Bailey v. Bd. of
Cnty. Comm’rs of Alachua Cnty., 956 D.2d 1112, 1122 (11th Cir. 1992).
13
Case: 16-10144 Date Filed: 12/05/2016 Page: 14 of 21
A showing of conspiracy requires more than conclusory allegations and a
“mere scintilla of evidence.” Rowe, 279 F.3d at 1283-84 (citing Walker v. Darby,
911 F.2d 1573, 1577 (11th Cir. 1990)). A plaintiff bringing a conspiracy claim
must inform the defendants of the nature of the conspiracy alleged. Fullman v.
Graddick, 739 F.2d 553, 556–57 (11th Cir. 1984) (citation omitted). It is not
enough to aver in the complaint that a conspiracy existed. Id. “A plaintiff
claiming a conspiracy under § 1983 must make particularized allegations that a
conspiracy exists.” See GJR Investments, Inc. v. County of Escambia, 132 F.3d
1359, 1370 (11th Cir. 1998). Vague and conclusory allegations that merely
suggest a § 1983 conspiracy are insufficient to withstand a motion to dismiss.
Fullman, 739 F.2d at 556-57. The claims must include enough factual allegations
to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at
554.
In order to state a § 1983 claim against Craig and Spence, Pittman must
demonstrate more than an agreement between these two private individuals. He
must show that they conspired with the only state actor in this case, Deputy
Campbell, to violate Pittman’s constitutional rights. But even taking Pittman’s
allegations as true, the Amended Complaint fails to allege such a plausible
agreement. True, the Amended Complaint asserts that Craig met with Spence, and
he agreed not to prosecute Spence if she blamed Pittman for the burglary of his
14
Case: 16-10144 Date Filed: 12/05/2016 Page: 15 of 21
home. This agreement allegedly came to fruition after Spence told Craig she was
in possession of some of Pittman’s belongings. While these allegations may
establish an agreement between Craig and Spence, an agreement between private
actors is not enough.
The Amended Complaint also alleges that “State Farm, its lawyers, and
Craig began working with the active assistance of Spence to criminally prosecute”
Pittman and that Craig introduced Spence to Deputy Campbell. Again, these
allegations do not establish an agreement between the private actors and Deputy
Campbell. Merely “introducing” Spence to Deputy Campbell is insufficient to
establish a conspiracy to violate Pittman’s constitutional rights.
Similarly, although Pittman alleges that Spence was “involved with
Campbell” and that “she was using Campbell” in order to obtain Pittman’s
property, these allegations do not rise to the level of an actionable claim because
they fail to set forth any agreement between Spence and Deputy Campbell. The
allegations tend to suggest that Spence used Deputy Campbell as an unsuspecting
pawn to investigate Pittman, but they do not establish an agreement between the
two defendants.
Pittman points primarily to paragraph 256 of his Amended Complaint to
support his conspiracy claim. In that paragraph, Pittman alleges three alternative
theories of conspiracy as follows:
15
Case: 16-10144 Date Filed: 12/05/2016 Page: 16 of 21
Either State Farm, its lawyers and Craig agreed with
Spence not to disclose the fact of Spence’s involvement
in the crime to Campbell and other law enforcement to
gain law enforcement’s help in prosecuting Pittman or;
Spence and Campbell did not disclose to State Farm, its
lawyers and Craig that they were aware of Spence’s
involvement in the crime; or all the defendants
understood Spence’s involvement in the crime and
agreed to prosecute Pittman for the crime anyway.
Pittman concedes that under the first scenario, his claim for conspiracy
would fail because any alleged agreement did not involve a state actor. With
respect to the second scenario, Pittman admits on appeal that the sentence is poorly
worded.8 The scenario also does not establish any agreement between Craig and
Campbell. Finally, while the third scenario potentially sets forth an agreement
between the parties, its stated conspiracy theory—based on complete speculation,
as demonstrated by the fact that it is alleged in the alternative to the other two
hypotheses, where one of the other theories concedes that Deputy Campbell had no
knowledge of Spence’s alleged involvement in the crime—is the type of
conclusory allegation that cannot satisfy the pleading standard set forth in Rule 8,
Twombly and Iqbal. In short, Pittman did not adequately plead any clear
agreement between the private defendants and a state actor above the speculative
level.
8
Pittman also concedes that he did not expressly allege that Deputy Campbell knew
Spence had information related to the location of the stolen property.
16
Case: 16-10144 Date Filed: 12/05/2016 Page: 17 of 21
Finally, while Deputy Campbell is a state actor who may be held liable
under § 1983 absent a conspiracy with the other defendants, we find that the
district court properly dismissed Count One against Deputy Campbell. In essence,
Pittman contends that Deputy Campbell fabricated the evidence used to support the
search and arrest warrants. Where a plaintiff challenges the constitutionality of a
seizure based on an allegedly false affidavit supporting a warrant, the plaintiff must
show that the officer deliberately or with reckless disregard for the truth made
material false statements or omitted material facts. Franks v. Delaware, 438 U.S.
154, 155, 98 S. Ct. 2674, 2676 (1978). The allegations in the Amended Complaint
fall short of demonstrating that Deputy Campbell fabricated evidence in the
warrants or that he had knowledge that what he presented in his affidavit was false.
Significantly, Pittman sets forth no allegations in the Amended Complaint of
precisely which facts in Deputy Campbell’s affidavit were allegedly false or
fabricated.
Pittman concedes that Deputy Campbell’s affidavit was based on
information he received from Ronnie Ledbetter and one of State Farm’s attorneys.
Pittman alleges that Spence was the original source of the information in the search
warrant that led to the discovery of Pittman’s items in the storage unit, which then
led to his arrest. In other words, Pittman implies that Spence baited Heather and
Ronnie Ledbetter to provide information to police. But Pittman fails to allege that
17
Case: 16-10144 Date Filed: 12/05/2016 Page: 18 of 21
Deputy Campbell had knowledge that the information he received from the
Ledbetters was false. Indeed, the Amended Complaint does not assert that
Campbell knew that Ronnie (or Heather) Ledbetter’s information came from
Spence. Under these circumstances, the § 1983 claim against Deputy Campbell
necessarily fails. See Dahl v. Holley, 312 F.3d 1228, 1235 (11th Cir. 2002)
(granting qualified immunity to officer where he accurately relayed information
obtained from an informant and “there [was] nothing to suggest that he knew this
information [was] inaccurate.”)
2. Count Two
In Count Two, Pittman attempts to set forth a conspiracy claim against the
defendants under the Fifth Amendment to the Constitution. The Fifth Amendment,
which protects individuals from being “deprived of life, liberty, or property,
without due process of law,” U.S. Const. amend. V, applies to only federal, not
state, actors. Knoetze v. U.S. Dep't of State, 634 F.2d 207, 211 (5th Cir. Jan. 12,
1981) (Fifth Amendment protection extends to all persons within the United States
but attaches only when the federal government seeks to deny a liberty or property
interest). 9 Pittman alleges neither that any of the defendants are federal actors nor
that the federal government in any way denied him a liberty or property interest.
9
The Eleventh Circuit adopted as binding precedent all decisions handed down by the
former Fifth Circuit prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981).
18
Case: 16-10144 Date Filed: 12/05/2016 Page: 19 of 21
Furthermore, Pittman offers no explanation of why the Fifth Amendment should
apply to the named defendants.
To the contrary, Pittman argues only that Section 1983 liability applies since
Campbell was employed as a police officer by a state law-enforcement agency. In
this regard, Pittman discusses the private defendants’ alleged connection with
Campbell, an agent of the state. And, he asserts, based on the private defendants’
participation with Campbell, the defendants were acting under “color of state law”
for § 1983 purposes. Because Pittman failed to allege any deprivation of liberty or
property by a federal actor, the district court correctly dismissed Count Two with
prejudice.10
D. Amendment of the Amended Complaint
Finally, while we recognize that under certain circumstances plaintiffs
should be permitted an opportunity to amend their complaint, those circumstances
do not exist here. In the district court, Pittman never made a motion to amend his
complaint, nor did he ever suggest how he could cure the pleading deficiencies in a
subsequent complaint. At most, in responding to the defendants’ motions to
dismiss, Pittman merely suggested that re-pleading might be required. Even if
10
While Pittman could have perhaps brought a claim for an alleged violation of his
Fourteenth Amendment rights, he did not set forth such a claim in his Amended Complaint. See
e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 931–32, 102 S. Ct. 2744, 2750–51 (1982)
(private party's joint participation with a state official in a conspiracy could meet state action
required to show a violation of Fourteenth Amendment rights). And, as discussed more fully
infra, because Pittman never sought to amend his complaint to assert such a claim, the district
court properly dismissed Count Two with prejudice.
19
Case: 16-10144 Date Filed: 12/05/2016 Page: 20 of 21
these statements could be construed as requests to amend the complaint, Pittman
failed to set forth how he would amend his complaint.
In Atkins v. McInteer, we explained that if a plaintiff wishes to amend his
complaint, he “must either attach a copy of the proposed amendment to the motion
or set forth the substance thereof.” 470 F.3d 1350, 1362 (11th Cir. 2006); see also
Urquilla–Diaz v. Kaplan Univ., 780 F.3d 1039, 1057 n. 14 (11th Cir. 2015) (“Diaz
never made a motion to amend his complaint, nor did he ever suggest how he
could cure his defective complaint in a subsequent pleading. Under our precedent,
the district court's decision [to dismiss] was not an abuse of discretion.”). And our
precedent makes clear that merely mentioning the possibility of amendment is not
tantamount to a request for leave to amend. See Lord Abbett Mun. Income Fund,
Inc. v. Tyson, 671 F.3d 1203, 1208 (11th Cir. 2012) (per curiam) (“The Fund's
request for leave to amend appeared in its response to the Defendant's motion to
dismiss. The Fund failed, however, to attach a copy of this proposed amendment
or set forth its substance. Therefore, the district court did not err by denying the
Fund's request.”).
Because Pittman never filed a motion for leave to amend his complaint and
never presented the district court with a proposed amended complaint curing the
pleading deficiencies, the district court did not err in dismissing Counts One and
Two with prejudice.
20
Case: 16-10144 Date Filed: 12/05/2016 Page: 21 of 21
IV.
For the foregoing reasons, we affirm the district court’s dismissal of Counts
One and Two of the Amended Complaint. Although Pittman may not proceed on
his Section 1983 claims, he may re-file his state-court claims for malicious
prosecution and defamation claims in state court.
AFFIRMED.
21