Miguel Clime v. Sunwest PEO , 253 F. App'x 805 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 06-11878 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00015-CV-FTM-29-DNF
MIGUEL CLIME,
Plaintiff-Appellant,
versus
SUNWEST PEO,
CNA CLAIMPLUS, INC.,
ARIAS LAW FIRM, P.A.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 31, 2007)
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Miguel Clime, proceeding pro se, appeals the district court’s sua sponte
dismissal of his complaint without prejudice, pursuant to 28 U.S.C. § 1915(e), for,
inter alia, failure to state a claim. In January 2006, Clime filed the instant
complaint against Sunwest PEO, CNA Claims Plus, Inc. and the Arias Law Firm
("Arias"), appearing to allege: (1) racial discrimination, retaliation, and a hostile
work environment, pursuant to Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. §§ 2000e-2, 3; (2) unlawful misconduct and negligence by Arias;
and (3) violations of 42 U.S.C. §§ 1981, 1982, and 1985 for "compiration,"
retaliation, and obstruction of justice. The district court adopted a magistrate
judge’s report recommending that Clime’s action be dismissed for failure to state a
claim and for failure to comply with its order to file an amended complaint in
compliance with the Federal Rules of Civil Procedure.
On appeal, Clime states, in his statement of material issues, that the district
court erred by issuing “summary judgment” against him because he presented
sufficient evidence to create a genuine issue of material fact as to whether the
defendants violated the “EPPA,”1 retaliated against him, engaged in misconduct, or
were negligent. Clime also provides the standard of review for granting summary
judgment. Clime then attempts to use his Blue Brief to file an amended complaint
1
He may be referring to the Employee Polygraph Protection Act, 29 U.S.C. § 2002(1),
although he did not appear to allege a violation of this Act in his complaint.
2
in compliance with the court’s orders below, with attached exhibits, and a
“counterclaim” against Arias.
A district court's dismissal for failure to state a claim, pursuant to
§ 1915(e)(2)(B)(ii), is reviewed de novo, using the same standards that govern
Fed.R.Civ.P. 12(b)(6) dismissals. See Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997). Section 1915(e) provides, inter alia, that any in forma pauperis
action or appeal shall be dismissed at any time if it fails to state a claim for which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Although a plaintiff is not held
to a very high standard in a motion to dismiss for failure to state a claim, the
federal rules do require “a short and plain statement” of the claim that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests. See Fed.R.Civ.P. 8(a); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683 (11th Cir. 2001). While notice pleading does not require the complainant
to allege a fact to cover every element of a claim, “it is still necessary that a
complaint contain either direct or inferential allegations respecting all the material
elements necessary to sustain a recovery under some viable legal theory.” Id.
(quotations and citations omitted).
Upon review of the pleadings, and Clime’s brief, we find no reversible error.
3
As an initial matter, because Clime raises no argument regarding the court’s
finding that he failed to state a claim, he has abandoned this argument on appeal.
See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir.1994) (noting that pro se litigant
abandons issue by failing to challenge it on appeal); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.1989) (deeming issue waived where
party fails to include substantive argument and only makes passing reference to the
order appealed from). In any event, because Clime appeared, at most, to make
conclusory and vague allegations, and his complaint was largely incoherent, the
district court did not err by dismissing his complaint for failure to state a claim.
AFFIRMED.2
2
Clime’s request for oral argument is denied.
4