USCA11 Case: 21-11901 Date Filed: 12/30/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11901
Non-Argument Calendar
____________________
ELIAS MAKERE,
FSA MAAA,
Plaintiff-Appellant,
versus
E GARY EARLY,
ADMINSTRATIVE LAW JUDGE,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:21-cv-00096-MW-MAF
____________________
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2 Opinion of the Court 21-11901
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Elias Makere appeals from the district court’s dismissal of his
pro se amended complaint alleging violations of his civil rights un-
der 42 U.S.C. § 1983, on the ground that the defendant was entitled
to absolute judicial immunity. Makere argues that the district
court erred when it sua sponte dismissed his complaint against
Judge E. Gary Early—who had ruled previously against Makere in
an employment discrimination case—because Makere paid the fil-
ing fee for his complaint, Judge Early had not been served process,
and the district court lacked the authority to assert absolute judicial
immunity on behalf of Judge Early. After de novo review, 1 we
agree with Makere that the district court erred by sua sponte dis-
missing his complaint at this stage. 2
1 The record is unclear as to what rule or statute the district court was relying
upon when it sua sponte dismissed Makere’s complaint—it appears that the
district court may have been proceeding under 28 U.S.C. § 1915(e)(2) or pos-
sibly Federal Rule of Civil Procedure 12(b)(6). Sua sponte dismissals under
§ 1915(e)(2) or Rule 12(b)(6) are reviewed de novo. Hughes v. Lott,
350 F.3d
1157, 1159–60 (11th Cir. 2003) (explaining that we review a district court’s sua
sponte dismissal under § 1915(e)(2) de novo); Timson v. Sampson,
518 F.3d
870, 872 (11th Cir. 2008) (explaining that we review de novo a Rule 12(b)(6)
dismissal.
2 Because we vacate and remand this case due to the district court’s procedural
error, we deny as moot Makere’s accompanying motion to take judicial notice
of twelve public records relating to the merits of his case.
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21-11901 Opinion of the Court 3
In February 2021, Makere filed a complaint in the U.S. Dis-
trict Court for the Northern District of Florida against Judge Early,
along with an application to proceed in forma pauperis (“IFP”).
Consequently, the case was referred to a magistrate judge for fur-
ther processing.3 The magistrate judge then issued an order ex-
plaining that Makere’s complaint and IFP motion could not be con-
sidered because they failed to comply with the local rules—both
documents lacked the required handwritten signature and the IFP
motion was not submitted on the correct form. The magistrate
judge directed the clerk’s office to send Makere the correct IFP
form and ordered that Makere file an amended complaint and
amended IFP motion that complied with the referenced local rules
by a certain date. The magistrate judge cautioned that “[f]ailure to
comply with this [c]ourt [o]rder may result in a recommendation
of dismissal of this action.”
When Makere failed to file the amended pleadings by the
specified date, the magistrate judge issued a report and
3 Although the record does not reflect the basis for referring the case to the
magistrate judge, we presume that the district court was operating under its
Local Rule 5.3, which provides that where a party files a civil action and moves
to proceed IFP, “the Clerk must open the case and refer any motion for leave
to proceed in forma pauperis to an assigned judge.” N.D. Fla. Local Rule 5.3.
Furthermore, under the Local Rules, a party seeking to proceed IFP is prohib-
ited from serving process on the defendants until the district court “enters an
order authorizing” service.
Id. Rule 4.1(A). Thus, Judge Early was not served
at this time.
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4 Opinion of the Court 21-11901
recommendation (“R&R”), recommending that the district court
dismiss the case for Makere’s failure to comply with its prior order.
Approximately twelve days later, Makere filed an amended
complaint, objected to the magistrate judge’s R&R, and, on the fol-
lowing day, paid the filing fee in full. On April 9, 2021, the magis-
trate judge, recognizing that Makere had filed an amended com-
plaint and paid the filing fee, treated Makere’s objections to the
R&R as a motion for reconsideration, which it granted, and vacated
the R&R.
Later that same day, however, the magistrate judge issued a
second R&R recommending that the district court sua sponte dis-
miss Makere’s complaint because, as an administrative law judge,
Judge Early is entitled to absolute judicial immunity. While the
magistrate judge did not reference 28 U.S.C. § 1915, presumably—
as there is nothing in the record that indicates that the defendant
was ever served or filed his own motion to dismiss—the magistrate
judge was screening the case pursuant to § 1915, which governs in
forma pauperis proceedings. 4 Makere objected to the second R&R,
4 Section 1915 provides that in IFP proceedings, the court:
shall dismiss the case . . . if the court determines that . . . (B) the action
or appeal—(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a de-
fendant who is immune from such relief.
28 U.S.C. § 1915 (e)(2). Although the magistrate judge did not specify the §
1915 provision under which he proceeded, his repeated references to judicial
immunity suggest § 1915(e)(2)(B)(iii).
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21-11901 Opinion of the Court 5
arguing that he filed an amended complaint and paid the filing fee,
and that the magistrate judge failed to cite a rule or statute that
authorized the sua sponte dismissal of his civil action under these
circumstances. The district court adopted the second R&R it in a
one-page order over Makere’s objections and dismissed the case.
The district court erred when it dismissed this case. After
paying the filing fee, Makere was not subject to 28 U.S.C. § 1915, 5
and the district court could not sua sponte dismiss his case under
the screening provisions of § 1915. See 28 U.S.C. § 1915(e)(2)(B)(ii)-
(iii).
Furthermore, to the extent the district court dismissed the
complaint sua sponte under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim—because again it is not clear
what rule or statute the district court was proceeding under—we
have prohibited such dismissals where, as here, the defendant has
not filed an answer (indeed, here, the defendant was never served),
“and the district court failed to provide the plaintiff with notice of
its intent to dismiss or an opportunity to respond.” See American
United Life Ins. Co. v. Martinez,
480 F.3d 1043, 1057 (11th Cir.
5While § 1915 applies to non-prisoners proceeding in forma pauperis, see Mar-
tinez v. Kristi Kleaners, Inc.,
364 F.3d 1305, 1306 n.1 (11th Cir. 2004), it does
not apply to non-prisoners who have paid the requisite filing fee. See Farese
v. Scherer,
342 F.3d 1223, 1228 (11th Cir. 2003) (per curiam) (“Logically,
§ 1915(e) only applies to cases in which the plaintiff is proceeding IFP.”). Mak-
ere paid his filing fee, and nothing in the record suggests that Makere was a
prisoner.
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6 Opinion of the Court 21-11901
2007); Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico,
Inc.,
695 F.2d 524, 527 (11th Cir. 1983). In short, the district court
erred in sua sponte dismissing the case at this preliminary stage of
the proceedings.6 Accordingly, we vacate and remand the case.
VACATED AND REMANDED.
6 Nothing in this opinion precludes the district court from sua sponte dismiss-
ing the case on remand if it determines that the complaint fails to state a claim
provided that the defendant is served, and the court provides Makere with
notice of its intent to dismiss and an opportunity to respond.
