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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12089
Non-Argument Calendar
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D.C. Docket No. 2:18-cv-14027-JEM
JOSHUA ISSIAH SHULER,
Plaintiff - Appellant,
versus
OKEECHOBEE CI WARDEN,
CAPTAIN ROGERS,
et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 25, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
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Joshua Shuler, a state prisoner proceeding pro se, appeals the dismissal with
prejudice of his civil 42 U.S.C. § 1983 action for abuse of process. He argues that
although he did not understand every rule and procedure, he was prejudiced by the
magistrate judge’s failure to appoint him counsel and that the district court abused
its discretion in dismissing his case. He further argues that he was not allowed to
adequately present his case or prove his suffering because he was denied the
necessary documentation and records and was unable to call witnesses. He also
argues that the judges racially discriminated against him, conspired to have his
case dismissed with prejudice, and did not want the defendants to be held
accountable for their actions.
We review a Rule 41(b) dismissal for abuse of discretion. Gratton v. Great
Am. Commc’ns,
178 F.3d 1373, 1374 (11th Cir. 1999). A district court abuses its
discretion when it sua sponte dismisses a civil action with prejudice where (1) the
court fails to make a finding that the plaintiff acted willfully or that a lesser
sanction would not have sufficed, and (2) nothing in the record supports a finding
that the plaintiff acted willfully or that a lesser sanction would not have sufficed.
Betty K Agencies, Ltd. v. M/V Monada,
432 F.3d 1333, 1337-42 (11th Cir. 2005).
We have repeatedly held that we will not consider an issue not raised in the
district court and raised for the first time in an appeal. Access Now, Inc. v.
Southwest Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004). Moreover,
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“prisoners raising civil rights claims, like other civil litigants, have no absolute
constitutional right to counsel.” Kilgo v. Ricks,
983 F.2d 189, 193 (11th Cir.
1993). Rather, appointment of counsel in civil cases is a privilege justified only by
exceptional circumstances such as the presence of facts and legal issues so novel or
complex as to require the assistance of a trained practitioner.
Id.
“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). However, once a pro se litigant
proceeding in forma pauperis is in court, “he is subject to the relevant law and
rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989). “These rules provide for sanctions for
misconduct and for failure to comply with court orders.”
Id.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal
of a complaint for failure to state a claim on which relief can be granted. Fed. R.
Civ. P. 12(b)(6). Moreover, Rule 41(b) provides that if the plaintiff fails to
prosecute or to comply with the Rules of Civil Procedure or a court order, a
defendant may move to dismiss the action or any claim against it. Fed. R. Civ. P.
41(b). Additionally, a district court may sua sponte dismiss a case under the
authority of either Rule 41(b) or the court’s inherent power to manage its docket.
Betty K
Agencies, 432 F.3d at 1337.
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“The severe sanction of dismissal with prejudice . . . can be imposed only in
the face of a clear record of delay or contumacious conduct by the plaintiff.” State
Establishment for Agric. Prod. Trading v. M/V Wesermunde,
838 F.2d 1576, 1582
(11th Cir. 1988) (quotation marks omitted). However, “[w]hile dismissal is an
extraordinary remedy, dismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of discretion.”
Moon, 863
F.2d at 837.
We will not consider Shuler’s arguments that the judges in his case racially
discriminated and conspired against him because he has presented those arguments
for the first time on appeal. See Access
Now, 385 F.3d at 1331. Moreover, his
argument that the magistrate judge denied him the documents and witness
testimony he needed to prove his case is irrelevant here. Shuler’s claim that he
was prejudiced by the district court’s failure to appoint him counsel is misplaced
because he had no absolute right to counsel for this case. See
Kilgo, 983 F.2d at
193. Moreover, Shuler’s liberally construed argument that the district court abused
its discretion by dismissing his case with prejudice fails. Shuler’s conduct was
willful and lesser sanctions would not have sufficed. See Betty K
Agencies, 432
F.3d at 1337-42. The record fully supports both findings. See
id. Accordingly, we
affirm.1
1
Shuler’s motion to file a reply brief out of time is DENIED.
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AFFIRMED.
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