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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11464
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-02490-LMM
DAVID BOOTH,
Plaintiff-Appellant,
versus
CITY OF ROSWELL,
a Municipal Subdivision of the State of Georgia,
RUSTY GRANT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 31, 2018)
Before MARCUS, JORDAN and FAY, Circuit Judges.
PER CURIAM:
David Booth appeals following the grant of the defendants’ motion to
dismiss his employment discrimination action for failing to state a claim upon
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which relief could be granted. Before filing this lawsuit, Booth filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”),
which dismissed his charge. In this appeal, Booth argues that the district court
erred: (1) by not converting the defendants’ motion to dismiss into a motion for
summary judgment when the defendants attached his EEOC charge to their
motion; and (2) by determining that he failed to state a claim under the Americans
With Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and under 42 U.S.C. §
1983. After careful review, we affirm.
Ordinarily, we review de novo the district court’s grant of a motion to
dismiss for failure to state a claim. Hill v. White,
321 F.3d 1334, 1335 (11th Cir.
2003). But under our Local Rule 3-1, the failure to object to a magistrate judge’s
Report and Recommendation (“R&R”) waives the right to challenge on appeal the
district court’s order based on unobjected-to factual and legal conclusions if the
party was informed of the time period for objecting and the consequences on
appeal for failing to object. 11th Cir. R. 3-1.
In the absence of a proper objection, however, we may review on appeal for
plain error if necessary in the interests of justice.
Id. To establish plain error, a
party must show (1) an error, (2) that is plain, and (3) that affected his substantial
rights. United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007). If the party
satisfies these conditions, we may exercise our discretion to recognize the error
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only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.
Id. An argument not mentioned in an appellant’s initial brief is
deemed abandoned. See Marek v. Singletary,
62 F.3d 1295, 1298 n.2 (11th Cir.
1995). Moreover, “an appellant’s simply stating that an issue exists, without
further argument or discussion, constitutes abandonment of that issue.” Singh v.
U.S. Att’y Gen.,
561 F.3d 1275, 1278-79 (11th Cir. 2009). 1
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotation omitted). Additionally, a
district court may consider a document attached to a motion to dismiss, without
converting it to a motion for summary judgment, when the plaintiff refers to the
document in his complaint, it is central to his claims, and there is no reasonable
dispute as to the authenticity of the document. Horsley v. Feldt,
304 F.3d 1125,
1134 (11th Cir. 2002).
Before filing suit under the ADA, a plaintiff must exhaust her administrative
remedies by filing a charge with the EEOC. See 42 U.S.C. § 12117(a) (applying
remedies and procedures of Title VII to ADA); Wilkerson v. Grinnell Corp., 270
1
Notably, Booth has abandoned several arguments on appeal. He has abandoned any challenge
to the district court’s determination that he failed to state an equal protection claim because he
does not mention “equal protection” in his brief.
Marek, 62 F.3d at 1298 n.2. He also has
abandoned any challenge to the district court’s failure to sua sponte allow him to amend his brief
because he raises the issue in an ancillary section of his brief, with no further argument or
discussion.
Singh, 561 F.3d at 1278-79.
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F.3d 1314, 1317 (11th Cir. 2001). The allegations in the judicial complaint must
be “reasonably related” to the EEOC charge with no “material differences”
between the two. See Wu v. Thomas,
863 F.2d 1543, 1547 (11th Cir. 1989).
“Allegations of new acts of discrimination, offered as the essential basis for the
requested judicial review, are not appropriate.” Ray v. Freeman,
626 F.2d 439,
443 (5th Cir. 1980).2 Additionally, to survive a motion to dismiss, an ADA claim
for disparate treatment must contain more than speculative conclusions and must
provide enough factual matter, taken as true, to plausibly suggest intentional
disability discrimination. See
Iqbal, 556 U.S. at 678-79.
A claimant is entitled to relief under 42 U.S.C. § 1983 if he can prove that a
person acting under color of state law deprived him of a federal right. Almand v.
DeKalb Cnty., Ga.,
103 F.3d 1510, 1513 (11th Cir. 1997). However, § 1983 is not
itself a source of substantive rights, but merely provides “a method for vindicating
federal rights elsewhere conferred.” Baker v. McCollan,
443 U.S. 137, 144 n.3
(1979). The first step in a § 1983 claim is to identify the specific constitutional
right allegedly infringed. See Graham v. Connor,
490 U.S. 386, 394 (1989).
As the record reveals, Booth failed to object to the magistrate judge’s R&R
at the district court and now fails to argue for plain error review on appeal. Thus,
under our local rules, he has waived the right to challenge the district court’s order
2
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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on appeal. 11th Cir. R. 3-1.
But even reviewing Booth’s arguments for plain error, we can find none.
First, the district court did not plainly err by dismissing Booth’s amended
complaint for failure to state a claim. As the record reflects, the district court
applied the correct standard to the motion to dismiss, assessing whether the
amended complaint contained sufficient factual matter to state a claim that was
plausible on its face.
Iqbal, 556 U.S. at 678. Nor did district court err in refusing
to convert the motion to dismiss into a motion for summary judgment when the
defendants attached his EEOC charge to their motion to dismiss. The record
makes clear that Booth referred to the EEOC charge in his complaint, as amended;
it was central to whether his claims were viable; and no one disputed its
authenticity.
Horsley, 304 F.3d at 1134.
As for his ADA failure-to-accommodate and hostile-work-environment
claims, the district court did not plainly err in dismissing them because they were
not administratively exhausted. Booth’s complaint reveals that his claims stem
from a motorcycle accident in which he suffered nerve damage and permanent
partial paralysis of his right hand. The complaint alleged that sometime after the
accident, he received verbal and written counseling and he was placed on a 90-day
performance improvement plan because his productivity and “self-initiated
activity” was lower than other officers in his squad, and shortly thereafter, the City
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fired him, allegedly because he failed “to perform at an acceptable level of
competence.” The complaint further alleged that he had submitted a letter from his
doctor suggesting that courtroom duty would be more suitable for him than patrol
duty, but the City refused the suggestion or any other accommodations.
Booth’s EEOC charge, however, only said that he was terminated and that
he believed he had been discriminated against because of his disability; it did not
relay what his disability was, nor mention an accommodation request, a failure to
accommodate, harassment, or a hostile work environment. Further, in listing the
instances of discrimination he had suffered, his EEOC charge identified only the
verbal counseling, written counseling, and termination, which occurred about six
months after his alleged request for accommodation. Thus, the complaint’s failure-
to-accommodate and hostile-work-environment claims describe new acts of
discrimination, and as a result, the district court did not plainly err in dismissing
them for lack of exhaustion.
Ray, 626 F.2d at 443.
As for his disparate treatment claim, Booth did not allege that his disabled
hand had anything to do with any of the incidents for which he was disciplined, nor
did he allege that any city employee harbored a discriminatory animus against
people with disabilities. Because Booth did not allege any facts to support his
allegation that he was “terminated because he was an undesirable employee
because of his disability,” the district court did not plainly err in dismissing his
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disparate treatment claim. See
Iqbal, 556 U.S. at 678-79.
Finally, the district court did not plainly err in dismissing Count Two of
Booth’s complaint. As the record reveals, the complaint failed to identify any
constitutional right that was violated to support a claim under § 1983. See
Graham, 490 U.S. at 394. Accordingly, we affirm.
AFFIRMED.
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