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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11667
Non-Argument Calendar
________________________
D.C. Docket No. 6:19-cv-01437-PGB-EJK
JAMES A. GUSTINO,
Plaintiff-Appellant,
versus
STONEYBROOK WEST MASTER ASSOCIATION, INC.,
ATTORNEY GENERAL, STATE OF FLORIDA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 4, 2021)
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Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
After a Florida appellate court imposed monetary sanctions on James A.
Gustino for moving to reconsider a clearly untimely petition, he brought First, Fifth,
and Fourteenth Amendment claims under 42 U.S.C. section 1983 against
Stoneybrook West Master Association, Inc., and the Florida Attorney General
seeking damages and declaratory and injunctive relief. Gustino appeals the district
court’s orders dismissing his complaint and denying his motion for reconsideration.
We affirm the dismissal as to Gustino’s claims against the association, and we vacate
the district court’s judgment as to the Attorney General and remand with instructions
to dismiss Gustino’s claims against her for lack of standing.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Gustino, as counsel for Premier Security Services Worldwide, sued the
association in Florida state court for breach of contract. The association moved to
disqualify Gustino as Premier Security’s attorney because he previously represented
the association. On September 9, 2014, the state trial court granted the motion and
disqualified Gustino.
On October 10, 2014 (thirty-one days after Gustino’s disqualification), he
petitioned the state appellate court for a writ of certiorari to quash the trial court’s
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disqualification order. Because Gustino’s petition was untimely, 1 the state appellate
court dismissed it for lack of jurisdiction. See, e.g., Coldwell Banker Com. v.
Wightman,
649 So. 2d 346, 347 (Fla. 5th DCA 1995) (“[W]e lack jurisdiction to
consider the merits of the petition for writ of certiorari because it is untimely.”).
Gustino moved for rehearing. The association responded by moving for attorney’s
fees under Florida Statutes section 57.105. Section 57.105 allows a court to award
attorney’s fees against a losing party who raised a claim unsupported by the law,
unless the claim was presented as a good faith argument for modification of the law
with a reasonable expectation of success.
Fla. Stat. § 57.105(1)(b), (3)(a).2 The
association argued that Gustino’s petition and motion were meritless because the
1
See Fla. R. App. P. 9.100(c)(1) (providing that a petition for writ of certiorari must be
filed within thirty days of rendition of the order under review).
2
Section 57.105 provides:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable
attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal
amounts by the losing party and the losing party’s attorney on any claim or defense at any
time during a civil proceeding or action in which the court finds that the losing party or the
losing party’s attorney knew or should have known that a claim or defense when initially
presented to the court or at any time before trial:
***
(b) Would not be supported by the application of then-existing law to those material facts.
***
(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:
(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially
presented to the court as a good faith argument for the extension, modification, or reversal
of existing law or the establishment of new law, as it applied to the material facts, with a
reasonable expectation of success.
Fla. Stat. § 57.105(1)(b), (3)(a) (2019).
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thirty-day deadline that he missed was jurisdictional and not waivable under Florida
law. The state appellate court denied Gustino’s motion for rehearing, granted the
association’s motion for attorney’s fees, and remanded the case to the state trial court
to determine and assess a reasonable amount of fees.
In May 2019, the state trial court entered a final judgment ordering Gustino to
pay $8,362.39 to the association in attorney’s fees. In July 2019, Gustino appealed
that judgment to the state appellate court “on purely state law” grounds.
In August 2019, while Gustino’s state appeal of the attorney’s fees judgment
was pending, he sued the association and the Florida Attorney General in federal
court. Gustino brought a section 1983 claim for damages under the First, Fifth, and
Fourteenth Amendments against the association because it sought to enforce an
unconstitutional statute and judgment against him. Gustino also sought equitable
relief: declaring section 57.105 unconstitutional under the First and Fourteenth
Amendments, both facially and as applied; declaring the statute and the 2019
attorney’s fees judgment against him unenforceable; enjoining the enforcement of
the statute against him and anyone else; and enjoining the association from enforcing
the attorney’s fees judgment. Gustino alleged that the Attorney General was a proper
defendant because she was the chief legal officer of Florida, had a duty to defend
and enforce Florida law, was an elected official, and had broad authority to interpret
Florida law.
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The Attorney General and the association moved to dismiss Gustino’s
complaint. The Attorney General argued that Gustino’s claims should be dismissed
under the Younger3 abstention doctrine. Younger abstention applied here, the
Attorney General argued, because Gustino’s state appeal of the attorney’s fees
judgment against him was pending and he couldn’t show that he lacked an adequate
remedy in state court to address his federal constitutional claims. The Attorney
General also argued that Gustino lacked standing to sue her because he failed to
allege any “causal connection between an action of the Attorney General and any
injury allegedly suffered by [him].”
The association argued that Gustino failed to state a plausible section 1983
claim against it because, as a private homeowners’ association, the association
wasn’t a state entity and didn’t act under color of law. A private entity doesn’t
engage in state action, the association argued, just because it uses a state court to
obtain a favorable judgment.
The district court granted the Attorney General’s motion. The district court
concluded that the state appellate court’s order sanctioning Gustino was uniquely in
furtherance of the state court’s ability to perform its judicial functions, because
section 57.105 gives Florida courts the “ability to protect” themselves from “sham
appeals” and “abuses of the judicial process.” The district court then concluded that:
3
Younger v. Harris,
401 U.S. 37 (1971).
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(1) there was an ongoing state judicial proceeding (Gustino’s pending state appeal
of the attorney’s fees judgment); (2) this proceeding implicated the state’s important
interest in “protecting itself from abuses of the judicial process”; and (3) Gustino
had an adequate opportunity in his pending state appeal to challenge the
constitutionality of section 57.105. Gustino had not alleged, the district court
concluded, that “bad faith, harassment, or some other extraordinary circumstance”
justified the federal court’s intervention. The district court concluded that Younger
abstention applied and dismissed Gustino’s complaint.
Gustino moved for reconsideration. He argued that the district court had
“misinterpret[ed]” various Supreme Court cases applying Younger abstention and
overlooked the England 4 reservation he made in his pending state appeal. Gustino
also argued that the district court’s order: (1) overlooked cases disapproving of
abstention from First Amendment facial challenges; (2) conflicted with the text and
purpose of section 1983; (3) failed to address the differences between the claims
raised in his state appeal and the federal claims he raised here; and (4) erred by
dismissing rather than staying his section 1983 claims for damages.
The Attorney General and the association opposed the motion, both arguing
that it relitigated issues already rejected by the district court or raised arguments that
4
See England v. La. State Bd. of Med. Exam’rs,
375 U.S. 411 (1964).
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Gustino could have presented earlier. The Attorney General once again argued that
Gustino lacked standing to sue her.
The district court denied Gustino’s motion for reconsideration. As to his
Younger abstention arguments, the district court concluded that Gustino was
improperly relitigating old issues or raising new ones. As to Gustino’s specific claim
that the district court should have stayed his section 1983 claims for damages against
the association, the district court concluded that this too was a new theory which
should have been raised earlier. Addressing this claim “in an abundance of caution,”
the district court explained that staying claims for damages is unnecessary where
they “fail on other grounds.” Gustino’s section 1983 claims against the association
failed, the district court concluded, because it was a private actor and didn’t act under
color of state law.
STANDARDS OF REVIEW
Whether a plaintiff has standing to sue “is a threshold jurisdictional question
that we review de novo.” Muransky v. Godiva Chocolatier, Inc.,
979 F.3d 917, 923
(11th Cir. 2020) (en banc). We review de novo a district court’s dismissal of a
complaint for failure to state a claim. Henley v. Payne,
945 F.3d 1320, 1326 (11th
Cir. 2019). We review the district court’s denial of a motion for reconsideration for
an abuse of discretion. Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007).
Although we ordinarily construe pro se pleadings liberally, Holsomback v. White,
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133 F.3d 1382, 1386 (11th Cir. 1998), there’s no need for a liberal construction
where the pro se litigant is an attorney, Olivares v. Martin,
555 F.2d 1192, 1194 n.1
(5th Cir. 1977).
DISCUSSION
Gustino argues that the district court erred in concluding that the association
was not a state actor and dismissing his section 1983 claims against it.5
Gustino’s Standing to Sue the Attorney General
Before we address Gustino’s argument, we first consider whether he has
standing to sue the Attorney General. See, e.g., MSP Recovery, LLC v. Allstate Ins.
Co.,
835 F.3d 1351, 1357 (11th Cir. 1996) (“Federal courts have an independent
obligation to ensure that subject-matter jurisdiction exists to hear a case”). The
“‘irreducible constitutional minimum’ of standing consists of three elements: the
plaintiff must have suffered an injury in fact, the defendant must have caused that
injury, and a favorable decision must be likely to redress it.” Trichell v. v. Midland
Credit Mgmt., Inc.,
964 F.3d 990, 996 (11th Cir. 2020) (quoting Lujan v. Defs. of
Wildlife,
504 U.S. 555, 560–61 (1992)). “In plainer language, the plaintiff needs to
show that the defendant harmed him, and that a court decision can either eliminate
5
Gustino also argues that the district court erred in dismissing his complaint based on the
Younger abstention doctrine. Because we conclude that the association was not a state actor and
Gustino lacked standing to sue the Attorney General, we do not reach the Younger abstention
issues.
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the harm or compensate for it.” Muransky, 979 F.3d at 924. “Where, as here, a case
is at the pleading stage, the plaintiff must clearly . . . allege facts demonstrating each
element.” Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016) (quotation omitted).
We focus on the causation element of standing. Whenever a party is “dragged
into court,” the plaintiff must allege that the defendant’s “action or inaction caused
the plaintiff’s alleged injury.” BBX Capital v. Fed. Deposit Ins. Corp.,
956 F.3d
1304, 1312 (11th Cir. 2020). This element requires “that the plaintiff’s injury be
fairly traceable to the defendant’s conduct.” Lexmark Int’l, Inc. v. Static Control
Components, Inc.,
572 U.S. 118, 134 n.6 (2014). The Attorney General argues that
Gustino failed to allege that her actions caused his injury. Gustino responds that his
injury is fairly traceable to the Attorney General because she breached a fiduciary
duty to protect his constitutional rights from abridgment by section 57.105.
We agree with the Attorney General. Gustino did not allege that the attorney’s
fee judgment was fairly traceable to the Attorney General. His complaint established
the opposite; the judgment resulted from the state appellate court granting the
association’s motion for sanctions. Section 57.105 doesn’t “contemplate
enforcement by the Attorney General,” which “counts heavily against [Gustino’s]
traceability argument.” See Lewis v. Governor of Ala.,
944 F.3d 1287, 1299 (11th
Cir. 2019). Rather, the law allows for sanctions only “[u]pon the court’s initiative
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or motion of any party,”
Fla. Stat. § 57.105(1), and the Attorney General was not a
party to Gustino’s breach of contract claim against the association.
As for Gustino’s contention that he established causation because the
Attorney General has a duty to protect his constitutional rights, this theory “proves
entirely too much—and thus nothing at all.” See Lewis, 944 F.3d at 1300. If
Gustino’s argument were correct, the Attorney General could be sued “under
innumerable provisions of” Florida law simply because a plaintiff claimed in federal
court that any one of those laws was unconstitutional. See id. As we did in Lewis,
we reject a theory of traceability which would allow Gustino to sue the Attorney
General without showing that she actually caused his injury. See id. Finally,
although Gustino relies on Ex parte Young,
209 U.S. 123 (1908) to establish his
standing to sue the Attorney General, “Article III standing and the proper defendant
under Ex parte Young are ‘[s]eparate[]’ issues[.]” Jacobson v. Fla. Sec’y of State,
957 F.3d 1193, 1210 (11th Cir. 2020) (quoting Lewis, 944 F.3d at 1295).
Because Gustino failed to plausibly allege that his injuries are fairly traceable
to the Attorney General, he does not have standing to sue her. Thus, we vacate the
district court’s judgment as to the Attorney General and remand the case with
instructions to dismiss Gustino’s claims against her for lack of standing. See
Trichell, 964 F.3d at 1005 (“Because [the plaintiffs] lack Article III standing, we
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vacate the district courts’ judgments and remand the cases with instructions to
dismiss for lack of Article III standing.”).
Dismissal of Gustino’s Section 1983 Claims Against the Association
Gustino argues that the district court erred in concluding that his section 1983
claims failed because the association was not a state actor. State action exists in
First Amendment challenges to state law, Gustino argues, even “in litigation
between private parties[.]”
A plaintiff raising a section 1983 claim must show the deprivation of “a
federal right by a person acting under color of state law.” Griffin v. City of Opa-
Locka,
261 F.3d 1295, 1303 (11th Cir. 2001). For a party to act under color of law,
its conduct must be “fairly attributable to the state”: the deprivation “must be caused
by the exercise of some right or privilege created by” the state, and the party must
be a “state actor.” Harvey v. Harvey,
949 F.2d 1127, 1130 (11th Cir. 1992).
But the association isn’t a state actor. It’s a private homeowners’ association.
“Only in rare circumstances can a private party be viewed as a ‘state actor’ for
section 1983 purposes.”
Id. A private party can be held liable as a state actor only
if: (1) the state “coerced or at least significantly encouraged the action alleged to
violate the Constitution”; (2) the private party “performed a public function that was
traditionally the exclusive prerogative of the State”; or (3) the state “had so far
insinuated itself into a position of interdependence with” the private party “that it
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was a joint participant in the enterprise[.]” Rayburn ex rel. Rayburn v. Hogue,
241
F.3d 1341, 1347 (11th Cir. 2001) (quotation omitted).
Gustino argues that the association was a state actor because it “deploy[ed]
the judicial power” of Florida state courts to secure and enforce a judgment against
him “under a facially unconstitutional state statute[.]” But “one who has obtained a
state court order or judgment is not engaged in state action merely because it used
the state court legal process.” Cobb v. Ga. Power Co.,
757 F.2d 1248, 1251 (11th
Cir. 1985); see also Harvey, 949 F.2d at 1133 (“Use of the courts by private parties
does not constitute an act under color of state law”). Thus, the district court did not
err in finding that the association was not a state actor under section 1983.
Because Gustino did not plausibly allege that the association acted under color
of state law, we affirm the district court’s order dismissing his section 1983 claims
against it.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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