Preston Jermaine Lewis v. Thomas Joseph Leonard ( 2017 )


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  •              Case: 17-11291    Date Filed: 11/27/2017   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-11291
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 3:15-cv-00234-MCR-EMT
    PRESTON JERMAIN LEWIS,
    Plaintiff-Appellant,
    versus
    THOMAS JOSEPH LEONARD,
    Director, Adult and Secondary Education,
    Pensacola State College,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (November 27, 2017)
    Case: 17-11291     Date Filed: 11/27/2017   Page: 2 of 9
    Before TJOFLAT, HULL and NEWSOM, Circuit Judges.
    PER CURIAM:
    In this 
    42 U.S.C. § 1983
     action, plaintiff Preston Jermain Lewis, a former
    student at Pensacola State College (“PSC”), appeals pro se the district court’s order
    granting summary judgment in favor of defendant Thomas Joseph Leonard, the
    former Director of the Office of Student Conduct at PSC. Lewis’s § 1983 action
    arose out of an investigation of student misconduct at PSC. The district court
    granted defendant Leonard’s motion for summary judgment, concluding that
    Lewis’s claims were barred by the doctrine of res judicata. After review, we
    affirm.
    I. BACKGROUND FACTS
    A.    Lewis’s First § 1983 Action in 2013
    In June 2013, Lewis filed pro se a § 1983 action against defendant Leonard
    alleging race discrimination during Leonard’s investigation into student
    misconduct at PSC in 2013. Specifically, Lewis, who is African American, alleged
    that he was called out of a class and taken to a conference room, where defendant
    Leonard asked him if he had used profanity toward one of his professors. After
    Lewis denied doing so, defendant Leonard told Lewis to leave PSC’s campus or
    face arrest for trespassing. Later, Lewis was told by PSC officials that the incident
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    was a mistake and that he could return to campus. Lewis alleged that defendant
    Leonard’s actions were based on race.
    On July 28, 2014, the district court granted defendant Leonard’s motion to
    dismiss based on qualified immunity and dismissed Lewis’s § 1983 complaint for
    failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Lewis did
    not appeal the dismissal.
    B.    Lewis’s Second § 1983 Action in 2015
    About nine months later, on May 22, 2015, Lewis filed this second,
    counseled § 1983 complaint against defendant Leonard alleging claims of race
    discrimination and deprivation of due process. Like his first complaint, Lewis’s
    second complaint described his 2013 encounter with defendant Leonard and
    alleged that defendant Leonard asked Lewis if he had sexually harassed the
    professor and then dismissed Lewis from PSC without conducting a proper
    investigation.
    During discovery, plaintiff Lewis failed to appear at his noticed deposition.
    Shortly thereafter, Lewis’s attorney withdrew, citing Lewis’s failure to appear, and
    Lewis elected to proceed pro se.
    Defendant Leonard filed a motion for sanctions pursuant to Federal Rule of
    Civil Procedure 37(d)(1)(A), noting that Lewis had advised his attorney (in the
    early morning hours before the deposition was scheduled) that he would not
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    appear. In his pro se response, Lewis did not dispute that his deposition was
    scheduled and that he failed to appear. Instead, Lewis explained that he decided he
    could not attend the deposition (1) after his former attorney advised him that
    defendant Leonard had not yet responded to interrogatories, and (2) because Lewis
    and his former attorney did not reach an understanding about how to handle the
    situation.
    A magistrate judge (“the court”) granted defendant Leonard’s motion for
    sanctions, concluding that plaintiff Lewis had not “shown that his failure to appear
    was substantially justified or that other circumstances made the award of expenses
    unjust.”1 The court explained that even assuming that Lewis “had properly
    propounded interrogatories to Defendant and Defendant had indeed failed to
    answer them, this alone does not entitle Plaintiff to purposely avoid his
    deposition.” The court ordered defendant Leonard to file a notice setting forth the
    amount of fees sought. In the order, the court advised Lewis that if he elected not
    to file a response to defendant Leonard’s notice, Lewis would “forfeit[ ] the right
    to contest the award sought by Defendant and any determination by this court that
    he is responsible for payment of the award.” Lewis did not file a response, and the
    1
    After the district court referred the case to the magistrate judge to handle non-dispositive
    matters, the magistrate judge entered the order granting defendant Leonard’s motion for
    sanctions and the subsequent order directing plaintiff Lewis to pay $4,730 in attorney’s fees.
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    court ordered Lewis to pay $4,730 in attorney’s fees related to Lewis’s failure to
    attend the scheduled deposition.
    C.     Motion for Summary Judgment in Second Action
    Following discovery, defendant Leonard filed a motion for summary
    judgment, asserting that plaintiff Lewis’s claims were barred by res judicata
    because they were litigated in the prior action. Lewis’s response to the summary
    judgment motion recounted the confrontation with defendant Leonard and argued
    the merits of his claims, but did not address the issue of res judicata.
    The magistrate judge issued a report (“R&R”) recommending that the
    district court grant defendant Leonard’s motion for summary judgment because
    Lewis’s claims were barred by res judicata. Lewis filed an objection to the R&R
    that argued the merits of his claims, but did not object to the magistrate judge’s
    conclusion that his claims were barred by res judicata. The district court adopted
    the R&R and granted Leonard’s summary judgment motion.
    II. DISCUSSION
    A.     Summary Judgment
    On appeal, plaintiff Lewis’s attack on the district court’s summary judgment
    ruling addresses only the merits of his claims. 2 Lewis does not address, much less
    2
    For example, plaintiff Lewis argues that the district court failed to consider his summary
    judgment evidence—including a statement by a PSC officer about lifting a trespass warning
    given to Lewis and also the admissions by PSC officials that the school had made a mistake—
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    challenge, the district court’s basis for granting summary judgment—the
    conclusion that res judicata barred Lewis’s claims. Indeed, there is no mention of
    the district court’s res judicata ruling anywhere in Lewis’s appeal brief.
    Although we construe pro se briefs liberally, we will not act as de facto
    counsel for litigants, and a pro se litigant who offers no substantive argument on an
    issue in his brief abandons the issue on appeal. Timson v. Sampson, 
    518 F.3d 870
    ,
    874 (11th Cir. 2008). Because Lewis does not argue that the district court
    misapplied the doctrine of res judicata to his case, he has abandoned this issue.
    Even if plaintiff Lewis had properly preserved the issue, the district court
    properly concluded that Lewis’s second § 1983 action against defendant Leonard
    was barred by res judicata. Under that doctrine (also known as claim preclusion), a
    claim is barred by a prior suit if: “(1) there is a final judgment on the merits; (2) the
    decision was rendered by a court of competent jurisdiction; (3) the parties . . . are
    identical in both suits; and (4) the same cause of action is involved in both cases.”
    Griswold v. Cnty. of Hillsborough, 
    598 F.3d 1289
    , 1292 (11th Cir. 2010)
    (quotation marks omitted). All four conditions are met here.
    First, there was a final judgment on the merits in Lewis’s prior § 1983
    action, because the court dismissed Lewis’s complaint for failure to state a claim
    that Lewis contends supported an inference of racial discrimination. Lewis also states that he
    was deprived of his liberty and property interests without due process of law.
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    for relief pursuant to Rule 12(b)(6). Federated Dep't Stores, Inc. v. Moitie, 
    452 U.S. 394
    , 399 n.3, 
    101 S. Ct. 2424
    , 2428 n.3 (1981) (“[A] dismissal for failure to
    state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the
    merits.”) (quotation marks omitted); NAACP v. Hunt, 
    891 F.2d 1555
    , 1560 (11th
    Cir. 1998) (same). Second, the dismissal was rendered by a court of competent
    jurisdiction, because it involved a federal claim and properly invoked the
    jurisdiction of the Northern District of Florida. Third, the parties are identical in
    each action. Fourth, the cases involve the same cause of action, because the claims
    raised in both cases are based upon the 2013 incident between Leonard and Lewis
    that occurred at PSC. See Griswold, 598 F.3d at 1293 (“If a case arises out of the
    same nucleus of operative facts, or is based upon the same factual predicate, as a
    former action, the two cases are really the same ‘claim’ or ‘cause of action’ for
    purposes of res judicata.” (alterations and quotation marks omitted)).
    Thus, we have no basis to overturn the district court’s decision granting
    summary judgment.
    B.     Sanctions Order
    On appeal, plaintiff Lewis also argues that the court abused its discretion by
    ordering him to pay $4,730 in attorney’s fees to defendant Leonard related to
    Lewis’s failure to attend the scheduled deposition.
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    Under Rule 37(d), the district court may grant a motion for sanctions if a
    party fails to attend his own deposition after being properly served with notice of
    the deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). Either in lieu of, or in addition to,
    other sanctions, the district court “must require” either the party that failed to
    appear, or his attorney, or both “to pay the reasonable expenses, including
    attorney’s fees, caused by the failure, unless the failure was substantially justified
    or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
    37(d)(3). We review for abuse of discretion a district court’s determination that
    there was no substantial justification for the conduct that resulted in the ordered
    sanctions. Devaney v. Cont’l Am. Ins. Co., 
    989 F.2d 1154
    , 1162-63 (11th Cir.
    1993).
    Here, plaintiff Lewis has not shown that the court abused its discretion in
    granting the motion for sanctions. Lewis has never disputed that he failed to attend
    his properly set deposition. The only justification Lewis ever offered for his
    failure to attend was that he believed he should not be deposed until after
    defendant Leonard answered interrogatories. Lewis says that, on the eve of his
    deposition, he learned from his former attorney that defendant Leonard had not
    answered the interrogatories and that he and his attorney did not have an
    understanding about how to respond. As the court noted, however, the proper
    response to such a concern was to file a motion to compel interrogatory responses,
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    not for Lewis to refuse to attend his duly noticed deposition only hours before it
    was set to begin.
    On appeal, plaintiff Lewis points out that defendant Leonard’s attorney also
    did not appear at the noticed address in Pensacola for the deposition. Although
    true, it ignores the reason. On the morning of the deposition, as the attorneys for
    both parties were driving from Tallahassee to Pensacola to take the deposition,
    Lewis’s attorney learned that Lewis refused to attend. Lewis’s attorney then
    advised Leonard’s attorney of this fact, and Leonard’s attorney turned around and
    drove back to Tallahassee. Under the circumstances, we find no abuse of
    discretion in the district court’s determination that Lewis’s failure to attend the
    deposition was not substantially justified.
    To the extent Lewis argues that the amount of the award places a heavy
    financial burden on him, it is clear that Lewis failed to file a response to the notice
    of attorney’s fees in the district court and did not contest the amount of the award
    in the district court. Thus, Lewis has waived this issue on appeal, and we do not
    address it. See Access Now, Inc. v. Sw. Airlines Co., 
    385 F.3d 1324
    , 1331 (11th
    Cir. 2004).
    AFFIRMED.
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