Layon Dean Jeremiah v. Jack Burnette , 297 F. App'x 854 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 22, 2008
No. 08-13310 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00516-CV-CAP-1
LAYON DEAN JEREMIAH,
Plaintiff-Appellant,
versus
JACK BURNETTE,
BUTCH CONWAY,
RODNEY K. MILES,
BRIAN W. WHITESIDE,
HERBERT ADAMS, JR.,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 22, 2008)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Layon Dean Jeremiah, a state prisoner and Jamaican citizen proceeding pro
se, appeals the district court’s dismissal of his complaint alleging claims under 42
U.S.C. § 1983 and 28 U.S.C. § 1350. Jeremiah alleged that Georgia state officials
violated his rights under Article 36 of the Vienna Convention on Consular
Relations (“VCCR”) when they arrested him in March 1998 because they failed to
inform him of his right to contact Jamaican consular offices regarding his arrest.
He further alleged that he was incarcerated based on an arbitrary and capricious
conviction. The district court dismissed Jeremiah’s complaint sua sponte.
On appeal, Jeremiah argues that: (1) the district court wrongly applied 28
U.S.C. § 1915A in dismissing his complaint; (2) the VCCR confers enforceable
individual rights; (3) his § 1983 claim based on the VCCR is not time barred; and,
(4) the district court erred by not providing him with an opportunity to amend his
complaint before dismissing it. We affirm.
DISCUSSION
We address the procedural issues before turning to the merits of Jeremiah’s
appeal.
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I.
Jeremiah has not raised any argument on appeal regarding his claim that he
was incarcerated pursuant to an arbitrary and capricious conviction. Consequently,
we deem any argument relating to this claim to be abandoned. See Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).
II.
Jeremiah argues that the district court erroneously dismissed his complaint
because he fully paid the filing fee and is thus not proceeding in forma pauperis.
28 U.S.C. § 1915. Regardless, however, “[t]he [district] court shall review . . . as
soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.” § 1915A(a). Because Jeremiah is a prisoner suing Georgia
state officers, the district court properly applied § 1915A in dismissing Jeremiah’s
complaint.
III. Jeremiah argues that the district court erred by denying him leave to amend
his complaint. We have held that “[a] district court is not required to grant a
plaintiff leave to amend his complaint sua sponte when the plaintiff, who is
represented by counsel, never filed a motion to amend nor requested leave to
amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314
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F.3d 541, 542 (2002) (en banc), overruling Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir. 1991) (per curiam) (“Where a more carefully drafted complaint 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.”).
We noted that Wagner “decide[d] and intimate[d] nothing about a party
proceeding pro se.” Id. at 542 n.1. Accordingly, Jeremiah argues that Bank
applies here and that the district court erred by not allowing him to amend his
complaint. However, “a district court may properly deny leave to amend . . . when
such amendment would be futile.” Hall v. United Ins. Co. of Am., 367 F.3d 1255,
1263 (11th Cir. 2004). Since we find, for the reasons discussed below, that an
amendment would have been futile, we find no reversible error in the district
court’s denial of leave to amend.
IV.
We now address the merits of Jeremiah’s appeal. We review the district
court’s dismissal of a claim as frivolous for an abuse of discretion. See Bilal v.
Driver, 251 F.3d 1346, 1348-49 (11th Cir. 2001). In reviewing a prisoner’s civil
action, “the court shall identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous . . . .” 28 U.S.C. §
1915A(b)(1). “A claim is frivolous if it is without arguable merit either in law or
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fact.” Bilal, 251 F.3d at 1349. “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(per curiam) (citation omitted).
Jeremiah argues that the district court erred by dismissing his claims as
frivolous because “consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse and correspond
with him and to arrange for his legal representation.” Vienna Convention on the
Law of Consular Relations art. 36(1)(c), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.
261. Jeremiah argues that, under the VCCR, Georgia state officials had the duty to
inform him of his right to communicate with Jamaican consular officers regarding
his arrest. Jeremiah urges this Court to follow Jogi v. Voges, where the Seventh
Circuit held that Article 36 “grants private rights to . . . aliens from countries that
are parties to the Convention who are in the United States . . . .” 480 F.3d 822, 835
(7th Cir. 2007). The Jogi court found that those rights are “‘presumptively
enforceable by § 1983.’” Id. (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284,
122 S. Ct. 2268, 2276, 153 L. Ed. 2d 309 (2002)).
We have, however, concluded otherwise. See, e.g., Gandara v. Bennett, 528
F.3d 823 (11th Cir. 2008). In rejecting the Jogi court’s reasoning, we noted that
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“the Vienna Convention does not expressly provide for private damage actions.
Instead, the plain words of the Treaty provide that the notification right shall be
exercised, not that failure to notify should be compensated.” Id. at 828 (citation
and internal quotation marks omitted). To the extent that the VCCR confers legal
rights and obligations, “the right to protect nationals belongs to States party to the
Convention; no private right is unambiguously conferred on individual detainees
such that they may pursue it through § 1983.” Id.
Here, Jeremiah’s § 1983 and § 1350 claims are private damage actions based
on an alleged violation of the VCCR. And his claims are based on rights that we
do not recognize as enforceable. See id. Accordingly, the district court did not err
in dismissing Jeremiah’s complaint as frivolous under 28 U.S.C. § 1915A. Nor did
the court err in denying leave to amend the complaint because an amendment
would have been futile. Because Jeremiah’s claims were properly dismissed as
frivolous, we do not address whether Jeremiah’s § 1983 claim was time barred.
CONCLUSION
After carefully reviewing the record and Jeremiah’s brief, we discern no
reversible error.
AFFIRMED.
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