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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15704
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-01261-MHC
DAVID ANDREW NEZBEDA,
HEIDI CHRISTINE NEZBEDA,
Plaintiffs-Appellants,
versus
LIBERTY MUTUAL INSURANCE CORPORATION,
(LIC),
GILLIAN O’NAN,
MARK EDWARD MCRORIE,
ROBERT DALE LEONARD, II,
MELISSA BRICKEY, et. al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(October 15, 2019)
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Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
David and Heidi Nezbeda, proceeding pro se, appeal the sua sponte dismissal
of their complaint after the district court concluded that it was a shotgun pleading
and that their federal claims were frivolous under
28 U.S.C. § 1915(e)(2)(B)(i). On
appeal, the Nezbedas argue that the district court erred in dismissing their complaint
as a shotgun pleading without first allowing them to amend. Because the Nezbedas
do not challenge the district court’s conclusion that their federal claims were
frivolous under § 1915(e), we affirm.
I
The allegations surrounding the Nezbedas’ claims are long and convoluted.
The district court’s order discussed them at length, so we will not recount them fully
here. The district court summarized the complaint as follows:
[The Nezbedas], appearing pro se, have filed a twenty-
nine page Complaint against twenty-eight named
defendants. The Complaint contains 179 individually
numbered paragraphs and incorporates by reference a
forty-four-page affidavit of fact [by Mr. Nezbeda which]
contain[s] an additional 190 individually numbered
paragraphs. The allegations in the Complaint are
disjointed, voluminous, and difficult to follow.
D.E. 11 at 4 (internal citations omitted). The claims emerge from Mr. Nezbeda’s
divorce and child-custody proceedings against his ex-wife and devolve into a
conspiracy against him by several actors within the court system in Cobb County,
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Georgia. According to Mr. Nezbeda, these crooked proceedings resulted in his
unconstitutional incarceration and a Georgia superior court judge extorting him. To
complicate matters, Mr. Nezbeda asserts that this conspiracy intersects with his
home insurer’s denial of his insurance claim. Throughout the more than 300
paragraphs in the complaint and its accompanying affidavit, one common thread
emerges: everyone from his ex-wife to his home insurer is allegedly conspiring
against Mr. Nezbeda.
In December of 2016, a federal magistrate court judge permitted the Nezbedas
to proceed in forma pauperis and referred their complaint to the district court to
determine if it was frivolous under
28 U.S.C. § 1915(e). The district court sua sponte
dismissed the complaint—without allowing them to amend—on two grounds. First,
the district court outlined this circuit’s policy and rules against shotgun pleadings
and concluded that the Nezbedas’ complaint was a shotgun pleading. It reasoned
that the complaint was “‘replete with conclusory, vague, and immaterial facts not
obviously connected to any particular cause of action’ and, ultimately, fail[ed] ‘to
give the defendants notice of the claims against them and the grounds upon which
each claim rests.’” D.E. 11 at 17 (quoting Weiland v. Palm Beach Cty. Sheriff’s
Office,
792 F.3d 1313, 1322, 1323 (11th Cir. 2015)). Second, the district court
concluded that “[e]ven if the [c]omplaint were not subject to dismissal as a shotgun
pleading,” its claims were frivolous because the complaint failed state a claim under
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federal law and, thus, did not establish subject matter jurisdiction. D.E. 11 at 18, 20,
30.
On appeal, the Nezbedas assert that the district court erred by dismissing their
complaint without first permitting them to amend. They specifically argue that “a
district court must sua sponte give [the plaintiffs at least] one chance to replead
before dismissing [their] case with prejudice on non-merits shotgun pleading
grounds.” Vibe Micro, Inc. v. Shabanets,
878 F.3d 1291, 1296 (11th Cir. 2018)
(discussing our rule when a litigant who is represented by counsel files a shotgun
pleading). The argument section of the Nezbedas’ brief, however, includes only four
sentences and does not address the district court’s frivolity conclusion or how “a
more carefully drafted complaint might state a claim” in this case. See Bank v. Pitt,
928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy
Indus. Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002) (en banc). Liberty Mutual
Insurance Corp., one of the appellees, responded, arguing that the Nezbedas’ federal
claims failed as a matter of law.1 The Nezbedas did not file a reply brief.
II
In forma pauperis proceedings are governed by
28 U.S.C. § 1915. Subsection
(e)(2) of that statute provides that “the court shall dismiss the case at any time if the
1
Liberty Mutual is the only defendant that filed a brief in this appeal because, according to Liberty
Mutual, the Nezbedas failed to serve any other defendants.
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court determines that . . . (B) the action or appeal—(i) is frivolous or malicious [or];
(ii) fails to state a claim upon which relief may be granted . . . .” § 1915(e)(2). A
district court’s sua sponte dismissal for failure to state a claim under §
1915(e)(2)(B)(ii) is reviewed de novo, viewing the allegations in the complaint as
true. See Mitchell v. Farcass,
112 F.3d 1483, 1490 (11th Cir. 1997). A district
court’s sua sponte dismissal for frivolity under § 1915(e)(2)(B)(i), however, is
reviewed for an abuse of discretion. See Bilal v. Driver,
251 F.3d 1346, 1348–49
(11th Cir. 2001). “A claim is frivolous if it is without arguable merit either in law
or fact.”
Id. at 1349. See Carroll v. Gross,
984 F.2d 392, 393 (11th Cir. 1993) (per
curiam) (stating that a claim is frivolous “when it appears the plaintiff has little or
no chance of success”) (internal quotations omitted).2
We liberally construe pro se pleadings, holding them to a less stringent
standard than pleadings that are drafted by attorneys. See Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248, 1253 (11th Cir. 2017). See also Tannenbaum v. United States,
148
F.3d 1262, 1263 (11th Cir. 1998) (per curiam). This liberal construction, however,
“does not give a court license to serve as de facto counsel for a party, or to rewrite
an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cty.
2
The district court concluded both that the Nezbedas’ complaint “failed to state a claim upon
which relief can be granted” and that it “[was] frivolous under
28 U.S.C. §1915(e)(2)(B)(ii).” D.E.
11 at 30. The Nezbedas’ notice of appeal, however, specifically cites the district court’s dismissal
of this claims “as [f]rivolous,” D.E. 13 at 1, and their brief references the abuse of discretion
standard.
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of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (citation omitted). A pro
se complaint must still comply with the Federal Rules of Civil Procedure and provide
some factual support to plausibly state its claims. See Waldman v. Conway,
871
F.3d 1283, 1289 (11th Cir. 2017) (per curiam); Moon v. Newsome,
863 F.2d 835,
837 (11th Cir. 1989).
Despite the liberal pleading standard, if a pro se litigant fails to properly raise
an issue on appeal, he or she abandons that issue. See Timson v. Sampson,
518 F.3d
870, 874 (11th Cir. 2008). See also Horsley v. Feldt,
304 F.3d 1125, 1131 n.1 (11th
Cir. 2002). To raise an issue, an appellant must do more than “simply stat[e] that an
issue exists, without further argument or discussion.” Singh v. U.S. Att’y Gen.,
561
F.3d 1275, 1278 (11th Cir. 2009) (per curiam). He or she must support the claims
with arguments and authority. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d
678, 681 (11th Cir. 2014).
III
The district court in this case cited two alternative reasons to dismiss the
Nezbedas’ complaint. The first was that the complaint amounted to a shotgun
pleading, and the second was that the Nezbedas’ federal claims were frivolous.
Therefore, to meet their burden on appeal, the Nezbedas must establish that neither
reason justified dismissal. See Sapuppo, 739 F.3d at 680 (“When an appellant fails
to challenge properly on appeal one of the grounds on which the district court based
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its judgment, he is deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.”).
We agree that a district court generally must permit a pro se plaintiff to amend
his or her complaint at least once before sua sponte dismissing claims on shotgun
pleading grounds. See Vibe Micro, Inc., 878 F.3d at 1296; Bank,
928 F.2d at 1112.3
And we would be inclined to reverse if the district court’s only reason for dismissing
the Nezbeda’ complaint was that it was a shotgun pleading. But that is not the case.
The district court also concluded that the Nezbedas’ claims were frivolous, which
(in the district court’s words) justified dismissal “[e]ven if the [c]omplaint were not
subject to dismissal as a shotgun pleading.” D.E. 11 at 18, 30.
The district court may dismiss a plaintiff’s claims sua sponte—without
requiring or permitting the plaintiff to amend—if it concludes that the claims are
frivolous. See Hughes v. Lott,
350 F.3d 1157, 1163 (11th Cir. 2003) (citing §
1915(e)(2)(B)(i)). The Nezbedas present no arguments whatsoever to challenge the
district court’s conclusion that all of their federal claims are frivolous. Any
argument to that issue is therefore abandoned. See Sapuppo, 739 F.3d at 680;
Timson,
518 F.3d at 874. We therefore cannot say that the district court abused its
discretion in dismissing the Nezbedas’ claims. See Bilal,
251 F.3d at 1350.
3
We note that the district court’s order in this case referred to the Nezbedas’ complaint as
“Plaintiff[s’] Amended Complaint,” but our review of the record reveals that the Nezbedas never
moved to amend their complaint and the district court never ordered them to amend.
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III
For the foregoing reasons, we affirm the district court’s sua sponte dismissal
of the Nezbedas’ complaint.
AFFIRMED.
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