Torrence Windell Allen v. Tennille Gooden , 521 F. App'x 754 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14859
Non-Argument Calendar
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D.C. Docket No. 0:11-cv-61804-RSR
TORRENCE WINDELL ALLEN,
Plaintiff-Appellant,
versus
TENNILLE GOODEN,
#9925 Florida Dept. of Motor Vehicles,
TROOPER E. L. PAIGE, JR. #0906,
Florida Highway Patrol,
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR
VEHICLES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 4, 2013)
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Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Torrence Windell Allen, proceeding pro se, appeals the district court’s grant
of summary judgment in favor of Tennille Gooden, a Florida Department of Motor
Vehicles (“DMV”) employee, and the court’s grant of Florida Highway Patrol
Trooper E.L. Paige, Jr.’s motion to dismiss Allen’s 42 U.S.C. § 1983 complaint.
Allen’s complaint alleged that Gooden and Paige had violated his constitutional
rights when he was detained due to Gooden’s false statements to Paige. Allen
claimed that while at the DMV he attempted to pay Gooden, the cashier, when she
let another customer go ahead of him. According to documents attached to his
complaint, Allen became upset, reached over the counter, and said, “[H]ere’s my
money,” and Gooden asked him not to reach over the counter. Allen retorted, “Just
take my money, I don’t fear no man, it’s kill or be killed.” Gooden told Paige what
Allen had said, and Paige moved Allen to another part of the DMV until a police
officer arrived and questioned Allen, who was then released and not charged. The
district court held that both Paige and Gooden were entitled to qualified immunity.
On appeal, Allen argues that: (1) Gooden’s false, contradictory statements
should have rendered her ineligible for qualified immunity, since her statements to
law enforcement officers established that she knew she was lying to have Allen
arrested, and knew that this violated the law; and (2) the district court abused its
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discretion in failing to enter a default judgment against Paige because Paige
admitted that his motion to dismiss was untimely. After careful review, we affirm.
We review de novo the district court’s disposition of a summary judgment
motion based on qualified immunity, resolving all issues of material fact in favor
of the plaintiff and then addressing the legal question of whether the defendant is
entitled to qualified immunity under the plaintiff’s version of the facts. Case v.
Eslinger, 555 F.3d 1317, 1324-25 (11th Cir. 2009). We review the denial of a
motion for a default judgment for abuse of discretion. Mitchell v. Brown &
Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002).
First, we reject Allen’s claim that the district court erred in granting
summary judgment to Gooden on the basis of qualified immunity. A district court
shall grant summary judgment where the evidence shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a). Pro se pleadings are held to a less strict standard than
counseled pleadings and are construed liberally as a result. Trawinski v. United
Techs., 313 F.3d 1295, 1297 (11th Cir. 2002). We may affirm on any ground that
appears in the record, regardless of whether that ground was considered or relied
upon by the district court. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007). An argument that is not briefed is deemed abandoned on appeal.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
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To state a claim under § 1983, a plaintiff must allege facts sufficient to
establish that (1) the defendant deprived him of a right secured under the U.S.
Constitution or federal law, and (2) such deprivation occurred under color of state
law. Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010). When asserting
the affirmative defense of qualified immunity, an official first must establish that
she was engaged in a discretionary function when she performed the acts at issue
in the complaint. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263-64
(11th Cir. 2004). If the official shows that she was engaged in a discretionary
function, the burden shifts to the plaintiff to establish that: “(1) the defendant
violated a constitutional right, and (2) this right was clearly established at the time
of the alleged violation.” Id. at 1264. If the plaintiff establishes both prongs, the
defendant may not obtain summary judgment on qualified immunity grounds. Id.
The Fourth Amendment protects individuals from “unreasonable searches
and seizures.” U.S. Const. amend. IV. Seizures by law enforcement are
reasonable under the Fourth Amendment if they are justified by probable cause to
believe that the detainee committed a crime. Croom v. Balkwill, 645 F.3d 1240,
1246 (11th Cir. 2011). The Fifth Amendment protects, in relevant part, the right to
a grand jury indictment, to be free from double jeopardy, and to be free from
compelled self-incrimination. See U.S. Const. amend. V.
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The Fourteenth Amendment provides that no state shall deprive any person
of life, liberty, or property without due process of law. U.S. Const. amend. XIV.
A false imprisonment claim brought pursuant to § 1983 requires a showing of both
the common-law elements of a claim of false imprisonment and a due process
violation. Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). The elements
of common law false imprisonment are (1) an intent to confine; (2) an act resulting
in confinement; and (3) the victim’s awareness of confinement. Id. “The
Fourteenth Amendment Due Process Clause includes the right to be free from
continued detention after it was or should have been known that the detainee was
entitled to release.” Id. (quotation omitted).
Liberally construed, Allen’s argument asserts that he was falsely imprisoned,
in violation of the Fourteenth Amendment, and that he was illegally detained, in
violation of the Fourth Amendment. However, he does not raise any issue relating
to criminal charges or compelled self-incrimination on appeal, and has therefore
abandoned his Fifth Amendment claim.
As for Allen’s Fourth Amendment claim against Gooden, she did not detain
Allen, but instead she merely explained the incident to an officer and indicated that
she wished to press charges. Accordingly, Gooden did not violate Allen’s Fourth
Amendment rights because she did not “seize” Allen. As for Allen’s Fourteenth
Amendment claim, even assuming that he established a claim of false
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imprisonment, he points to no evidence to show, and he does not allege, that his
detention continued after it was known or should have been known that he was
entitled to be released. As a result, Gooden did not violate Allen’s Fourth or
Fourteenth Amendment rights, and the district court did not err in finding that she
was entitled to qualified immunity on both claims.
We also find no merit in Allen’s argument that the district court abused its
discretion in failing to enter a default judgment against Paige. “When a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party’s default.” Fed.R.Civ.P. 55(a). “Entry of judgment by default
is a drastic remedy which should be used only in extreme situations.” Mitchell,
294 F.3d at 1316-17 (quotation omitted). Generally, a party must serve an answer
to a complaint within 21 days of being served with the summons and complaint.
Fed.R.Civ.P. 12(a)(1)(A)(i). A motion to dismiss for failure to state a claim
generally must be made with or before an answer. See Fed.R.Civ.P. 12(b). A
passing reference to an issue in one’s appellate brief is insufficient to preserve that
issue on appeal. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6
(11th Cir. 1989) (holding that a reference to an issue in a party’s “statement of the
case” was insufficient to preserve it for appellate review, where the party
elaborated no arguments on the merits of the issue).
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In this case, the district court clerk denied Allen’s first motion for default
judgment against Paige, indicating that there was no proof of service in the record.
Paige was served with the complaint on February 22, and Paige moved to dismiss
on March 19, and, thus, the motion to dismiss was untimely. However, by the time
Allen filed his second motion for a default judgment, Paige had defended the
action, since he had filed his motion to dismiss. Thus, this was not an “extreme
situation” warranting the drastic remedy of a default judgment, and the court did
not abuse its discretion in denying Allen’s motion for a default judgment against
Paige. See Mitchell, 294 F.3d at 1317 (holding that the district court did not abuse
its discretion in denying the plaintiff’s motion for a default judgment where the
defendant filed a motion to dismiss “a short time after the deadline for responsive
pleadings” had passed, and the plaintiff had not shown that the defendant’s failure
to file an answer prejudiced him in any way).
Finally, to the extent that Allen’s appellate brief may be read as challenging
the dismissal of his claims against Paige on the merits, Allen has abandoned any
argument like this because, even read liberally, his passing reference to that issue is
insufficient to preserve if on appeal. Accordingly, Allen has not established that
the court erred in denying his motion for a default judgment or in granting Paige’s
motion to dismiss, and we affirm.
AFFIRMED.
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