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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10917 Non-Argument Calendar ________________________
D.C. Docket No. 9:16-cv-80819-BB
ANDREW DOUGLAS HOLLIS,
Plaintiff-Appellant,
versus
WESTERN ACADEMY CHARTER, INC., PRINCIPAL OF WESTERN ACADEMY CHARTER, INC., et al.,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 8, 2019)
Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-10917 Date Filed: 08/08/2019 Page: 2 of 17
Andrew Hollis, proceeding pro se, appeals the dismissal with prejudice of
his amended and second amended complaints, which alleged various violations of
his constitutional rights. First, as to his amended complaint, he argues that the
district court erred (1) in construing his retaliation claims as being brought under
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), (“Title VII”) and dismissing
them for failure to exhaust his administrative remedies and (2) in dismissing his
due process defamation claim as untimely. He asserts that the statute of limitations
for his defamation claim accrued when he realized that he had an available legal
remedy.
Second, as to his second amended complaint, Hollis argues that the district
court erred in dismissing his § 1983 claims for failure to state a claim, should have
considered the allegations in his prior complaints, and should have provided him
with an opportunity to amend before dismissing the complaint with prejudice.
Specifically, as to the substance of his § 1983 claims, he contends that Defendants
violated his right to privacy under the Fourth or Fourteenth Amendments by
disseminating the last four digits of his Social Security Number (“SSN”) to his
coworkers and asserts that the district court improperly applied the “third-party
doctrine.” He cites to § 7 of the Privacy Act of 1974 and State ex rel. Beacon
Journal Publ’g Co. v. Akron, 640 N.E.2d 164 (Ohio 1994), for the proposition that
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he had a reasonable expectation of privacy in his SSN. Next, Hollis contends that
Defendants violated his rights under the Equal Protection Clause by treating him
differently than other employees, and further, applied a discriminatory policy,
practice, or custom, by singling out his SSN for dissemination. He then contends
that Defendants violated his due process rights by providing false information at a
meeting regarding his pay raise and terminating his employment. Hollis also
argues that Defendants violated his First Amendment rights by disseminating his
SSN and providing the false information regarding his pay raise.1
I.
We review de novo a dismissal for failure to state a claim upon which relief
may be granted, “accepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.” Leib v. Hillsborough Cty. Pub.
Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). A Rule 12(b)(6)
dismissal based on the statute of limitations is proper “if it is apparent from the
face of the complaint that the claim is time-barred.” Gonsalvez v. Celebrity
Cruises, Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (per curiam) (quotation marks
omitted). “We review de novo the district court’s interpretation and application of
1 In their brief, Defendants refer to a previously filed motion to dismiss Hollis’s appeal. That motion was filed prior to the dismissal of Hollis’s appeal for want of prosecution, and Defendants did not renew their motion upon reinstatement of the appeal. To the extent that Defendants renew the motion in their brief, the motion to dismiss is DENIED. 3 Case: 18-10917 Date Filed: 08/08/2019 Page: 4 of 17
the statute of limitations.” Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d
1259, 1261 n.2 (11th Cir. 2003) (per curiam).
In Florida, the statute of limitations for a defamation action is two years and
accrues upon the publication of the defamatory statement. Fla. Stat. § 95.11(4)(g);
Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan,
629 So. 2d 113, 114-15 (Fla. 1993) (per curiam). Florida’s “delayed discovery”
doctrine provides, generally, that “a cause of action does not accrue until the
plaintiff either knows or reasonably should know of the tortious act giving rise to
the cause of action.” Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000) (per
curiam). The doctrine is limited by statute to causes of action involving fraud,
products liability, professional and medical malpractice, and intentional torts based
on abuse, and has only been extended by the Florida Supreme Court in the narrow
context of a childhood sexual abuse case. Davis v. Monahan, 832 So. 2d 708, 710,
712 (Fla. 2002). The doctrine is inapplicable to actions for defamation. Yusuf
Mohamad Excavation, Inc. v. Ringhaver Equip., Co., 793 So. 2d 1127, 1127-28
(Fla. Dist. Ct. App. 2001) (per curiam). Also, a statute of limitations may only be
tolled in Florida based on a number of specific statutory grounds, which does not
include ignorance of the law or of legal remedies. Fla. Stat. § 95.051; Hearndon,
767 So. 2d at 1185.
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“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) (per curiam). However, “this
leniency 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.” Campbell v.
Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quotation marks
omitted). Further, while pleadings filed by a pro se litigant are construed liberally,
pro se litigants must nonetheless comply with procedural rules. Alba v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007).
The district court did not err in dismissing Hollis’s defamation claim for
being untimely. The latest date that Hollis’s cause of action could have accrued
was well more than two years before he filed his initial complaint. Fla. Stat.
§ 95.11(4)(g); Flanagan, 629 So. 2d at 115. Moreover, Florida’s delayed
discovery doctrine is inapplicable, because that doctrine is confined to a limited set
of circumstances and defamation is specifically excluded from its reach.
Monahan, 832 So. 2d at 710; Ringhaver Equip., Co., 793 So. 2d at 1127-28. Also,
Hollis’s unawareness of his legal remedies did not toll the statute of limitations.
See Fla. Stat. § 95.051; Hearndon, 767 So. 2d at 1185. Accordingly, we affirm as
to this issue.
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II.
A plaintiff must first exhaust his administrative remedies with the Equal
Employment Opportunity Commission (“EEOC”) before filing a complaint for
discrimination under Title VII. Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336,
1339 (11th Cir. 2017). This is a mandatory claims processing rule, not a
jurisdictional prerequisite, and a defendant may waive it as a defense if the issue is
not timely raised. Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1849, 1851
(2019). The first step in this process is to timely file a charge of discrimination
with the EEOC upon receiving unequivocal notice of an adverse employment
decision. Stamper, 863 F.3d at 1340; Stewart v. Booker T. Washington Ins., 232
F.3d 844, 849 (11th Cir. 2000).
In general, a plaintiff may bring a lawsuit under 42 U.S.C. § 1983 when he is
deprived of a federal right by a person acting under color of state law. Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). This federal right may be
constitutional or statutory in nature. Collier v. Dickinson, 477 F.3d 1306, 1310
(11th Cir. 2007). Title VII provides a vehicle for plaintiffs to sue for
discriminatory employment practices, on the basis of race and other classifications.
42 U.S.C. § 2000e-5(f)(1); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973). Where the underlying facts are the same, disparate treatment claims under
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§ 1983 follow the same analytical framework as claims under Title VII. Crawford
v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
The district court did not err in dismissing Hollis’s Title VII claims for his
failure to exhaust his administrative remedies. While Hollis contends that his
retaliation claims were actually brought under § 1983, he explicitly relied upon
Title VII in stating those claims. Because Hollis did not allege that he exhausted
his administrative remedies with the EEOC and Defendants timely raised the issue
in their motion to dismiss Hollis’s amended complaint, the district court properly
dismissed Hollis’s Title VII claims. See Davis, 139 S. Ct. at 1849, 1851; Stamper,
863 F.3d at 1339. Even if Hollis’s retaliation claims were addressed under the
framework of § 1983, they would be insufficiently pled to survive a motion to
dismiss, as discussed below. See Carroll, 529 F.3d at 970. Accordingly, we
affirm as to this issue.
III.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, “naked
assertions devoid of further factual enhancement” or “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
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suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and
alterations omitted). Thus, while we must accept all of the complaint’s allegations
as true, we are “not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). We review the district
court’s decision of whether to grant leave to amend a pleading for abuse of
discretion. Walker v. S. Co. Servs., Inc., 279 F.3d 1289, 1291 (11th Cir. 2002).
A complaint must provide “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A party must state
its claims or defenses in numbered paragraphs, each limited as far as practicable to
a single set of circumstances.” Fed. R. Civ. P. 10(b). Complaints that fail to
comply with Rules 8 or 10, or both, are sometimes referred to as “shotgun
pleadings.” Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1320
(11th Cir. 2015).
Federal Rule of Civil Procedure 15 states, generally, that “[a] party may
amend its pleading once as a matter of course,” but requires “the opposing party’s
written consent or the court’s leave” for subsequent amendments. Fed. R. Civ. P.
15(a)(1)-(2). Rule 15 does not discuss the effect of an amended pleading on the
original pleading; however, Southern District of Florida Local Rule 15.1 provides
that any amendment must “reproduce the entire pleading as amended, and may not
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incorporate any prior pleading by reference.” S.D. Fla. L.R. 15.1. “We give great
deference to a district court’s interpretation of its local rules and review a district
court’s application of local rules for an abuse of discretion.” Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1302 (11th Cir. 2009) (quotation marks omitted). This
standard requires a party to show that the district court made a clear error of
judgment. Id.
“As a general rule, an amended complaint supersedes and replaces the
original complaint unless the amendment specifically refers to or adopts the earlier
pleading.” Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674
F.2d 1365, 1370 n.6 (11th Cir. 1982). Once the district court accepts the amended
pleading, “the original pleading is abandoned by the amendment, and is no longer a
part of the pleader’s averments against his adversary.” Pintando v. Miami-Dade
Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (quotation
marks omitted).
Generally, when “a more carefully drafted complaint” might state a claim,
the plaintiff must be given a chance to amend before dismissal. Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (quoting Bank v. Pitt, 928 F.2d
1108, 1112 (11th Cir. 1991)). However, the district court need not provide such an
opportunity where the plaintiff has repeatedly failed to cure deficiencies in his
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complaint through previous amendments or where amendment would be futile. Id.
In Corsello v. Lincare, Inc., for example, we determined that a district court did not
abuse its discretion in denying the plaintiff’s motion to amend his complaint where
the amendment would have produced the fourth complaint in the lawsuit, the
district court had previously warned the plaintiff about pleading with particularity,
and the same deficiencies that had existed in previous complaints were present in
the proposed amended complaint. 428 F.3d 1008, 1014-15 (11th Cir. 2005) (per
curiam).
In general, the Fourth Amendment protects individuals against unreasonable
searches and seizures wherever an individual has a reasonable expectation of
privacy. Terry v. Ohio, 392 U.S. 1, 9 (1968). “A seizure of property occurs when
there is some meaningful interference with an individual’s possessory interests in
that property.” United States v. Odoni, 782 F.3d 1226, 1237 (11th Cir. 2015)
(quotation marks omitted). An individual has a reasonable expectation of privacy
if he has a subjective expectation of privacy that society is prepared to recognize as
objectively reasonable. United States v. Miravalles, 280 F.3d 1328, 1331 (11th
Cir. 2002). Under the “third-party doctrine,” an individual lacks a reasonable
expectation of privacy in “information revealed to a third party and conveyed by
him to Government authorities, even if the information is revealed on the
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assumption that it will be used only for a limited purpose and the confidence
placed in the third party will not be betrayed.” United States v. Miller, 425 U.S.
435, 443 (1976); Presley v. United States, 895 F.3d 1284, 1291 (11th Cir. 2018),
cert. denied, 139 S. Ct. 1376 (2019).
While the Constitution does not guarantee the right to privacy, the Supreme
Court has recognized certain “zones of privacy” for “fundamental” rights that are
“implicit in the concept of ordered liberty.” Paul v. Davis, 424 U.S. 693, 712-13
(1976) (quotation marks omitted). The Court has determined that “matters relating
to marriage, procreation, contraception, family relationships, and child rearing and
education” qualify as fundamental rights. Id. at 713; see also Obergefell v.
Hodges, 135 S. Ct. 2584, 2599-600 (2015) (recognizing marriage, childrearing,
procreation, and education as fundamental rights). The right to privacy includes
avoiding the disclosure of personal information in some, but not all, circumstances.
Whalen v. Roe, 429 U.S. 589, 599-600, 602 (1977). In Collier v. Dickinson, for
example, we determined that the plaintiffs did not have a privacy right in personal
information that they disclosed to a state agency in order to obtain drivers licenses
when the agency later sold that information to mass marketers without the
plaintiffs’ consent. 477 F.3d 1306, 1307-08 (11th Cir. 2007).
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“Section 7 of the Privacy Act bars federal, state, or local agencies from
denying any individual any right, benefit, or privilege provided by law because of
such individual’s refusal to disclose his social security account number to the
agency.” Schwier v. Cox, 340 F.3d 1284, 1288 (11th Cir. 2003) (quotation marks
and emphasis omitted). In State ex rel. Beacon Journal Publishing Co. v. Akron,
the Ohio Supreme Court, in addressing the question of whether SSNs are public
records under the law of that state, determined that § 7 of the Privacy Act bestowed
a legitimate expectation of privacy on city employees in their SSNs. 640 N.E.2d
164, 166-67 (Ohio 1994).
In general, the Equal Protection Clause of the Fourteenth Amendment
requires government entities to treat similarly situated individuals the same.
Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). Thus, a
plaintiff typically must allege that he was treated differently because of his “race,
religion, national origin, or some other constitutionally protected basis.” Sweet v.
Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir. 2006). However, we
have recognized “class of one” equal protection claims, in which a plaintiff alleges
that he “has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Leib, 558 F.3d at
1306 (quotation marks omitted). To prove such a claim, a plaintiff must show that
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the defendant (1) treated him differently than other similarly situated individuals
and (2) unequally applied a facially neutral rule for the purpose of discriminating
against him. Id. at 1307. “[T]he similarly situated requirement must be rigorously
applied in the context of class of one claims.” Id. (quotation marks omitted).
The Due Process Clause of the Fourteenth Amendment encompasses the
right to substantive as well as procedural due process. McKinney v. Pate, 20 F.3d
1550, 1555 (11th Cir. 1994). Substantive due process claims are not available in
the employment law context. Id. at 1560. The right to procedural due process
ensures, in general, that an individual is afforded adequate safeguards before he is
deprived of life, liberty, or property. Id. at 1561. Thus, an employee must show
that he has a property interest in his job in order to state a procedural due process
claim. See Silva v. Bieluch, 351 F.3d 1045, 1047-48 (11th Cir. 2003). Whether an
employee has a property interest in his job is determined by reference to state law.
Bishop v. Wood, 426 U.S. 341, 344 (1976). Under Florida law, an “at will”
employee—that is, one whose employment is not subject to a contract, statute, or
other set of rules giving rise to an expectation of continued employment—does not
have a protected property interest in his employment. Lee Cty. Port Auth. v.
Wright, 653 So. 2d 1104, 1105 (Fla. Dist. Ct. App. 1995) (per curiam); see also
Smith v. Piezo Tech. and Prof’l Adm’rs, 427 So. 2d 182, 184 (Fla. 1983) (“[W]here
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the term of employment is discretionary with either party or indefinite, then either
party for any reason may terminate it at any time and no action may be maintained
for breach of the employment contract.”) (quotation marks omitted) (alteration in
original).
The First Amendment prohibits public employers from demoting or
discharging an employee in retaliation for the employee’s protected speech.
Morgan v. Ford, 6 F.3d 750, 753-54 (11th Cir. 1993) (per curiam). In order to
determine whether an employee has suffered such retaliation, we apply a four-part
test which asks (1) whether the employee’s speech was on a matter of “public
concern,” (2) if so, whether the employee’s First Amendment interests outweighed
the state’s interests as an employer, (3) whether the employee’s speech played a
“substantial part” in the state’s decision to demote or terminate the employee, and
(4) whether the state would have reached the same decision in the absence of the
protected speech. Id. at 754 (quotation marks omitted). Whether the employee’s
speech is a matter of public concern is a question of law that is answered by
analyzing the “content, form, and context of a given statement, as revealed by the
whole record.” Id. (quotation marks omitted). Courts consider, among other
factors, whether the employee spoke on behalf of the public as a citizen or for
himself as an employee, and whether the employee attempted to make his concerns
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public. Id. Speech involves a matter of public concern when it relates to a “matter
of political, social, or other concern to the community” but not when it involves
only a matter of personal interest to the employee. Id. at 754-55 (determining that
an employee’s formal complaints of sexual harassment in the workplace did not
implicate a matter of public concern where the employee did not attempt to involve
the public and the speech was motivated by the employee’s desire to improve the
conditions of her employment).
The district court did not err in dismissing Hollis’s complaint with prejudice.
As an initial matter, the district court properly confined its discussion to Hollis’s
second amended complaint in its final order of dismissal. After the district court
accepted the second amended complaint, that complaint’s allegations superseded
those of the initial and amended complaints. Pintando, 501 F.3d at 1243.
Although Hollis referred to his prior complaints in the second amended complaint,
doing so violated Local Rule 15.1’s prohibition against incorporation by reference.
Alba, 490 F.3d at 829; S.D. Fla. L.R. 15.1. Thus, the district court properly limited
the scope of its analysis to Hollis’s second amended complaint and gave it the
liberal construction due to pro se pleadings. See Mann, 588 F.3d at 1302;
Tannenbaum, 148 F.3d at 1263.
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The district court did not err in dismissing Hollis’s right to privacy claims.
Because Hollis voluntarily provided Defendants with the last four digits of his
SSN, he abandoned a reasonable expectation of privacy in those digits. Miller, 425
U.S. at 443. Also, Hollis did not show that he had a fundamental right to privacy
in his the last four digits of his SSN. See Paul, 424 U.S. at 713; Collier, 477 F.3d
at 1307-08. Finally, his Federal Privacy Act claim fails because the Act prohibits
the denial of any right, benefit, or privilege provided by law as a result of an
individual’s refusal to disclose his social security account number to the agency.
Hollis, however, has not alleged the denial of any such right, benefit or privilege
based on his refusal to disclose his social security number.
The district court did not err in dismissing Hollis’s equal protection claim.
His claim fails under the “class of one” framework because he did not allege that
Defendants treated similarly situated individuals differently or that they acted with
a discriminatory purpose. See Leib, 558 F.3d at 1307. In any event, Hollis’s equal
protection claim consists of unsupported legal conclusions, which are not sufficient
to survive a motion to dismiss. See Iqbal, 556 U.S. at 678; Allain, 478 U.S. at 286.
The district court did not err in dismissing Hollis’s due process claim.
Hollis cannot state a claim for a substantive due process violation because such
claims are not available in the employment law context. Pate, 20 F.3d at 1560. As
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for procedural due process, Hollis was required to show that he had a protected
property interest in his continued employment. Silva, 351 F.3d at 1047-48. His
allegations did not show that he was anything other than an at will employee, so
the district court properly dismissed his procedural due process claim. See Wright,
653 So. 2d at 1105.
The district court did not err in dismissing Hollis’s First Amendment claim.
Hollis’s speech regarding the dissemination of his SSN and his pay raise were not
matters of public concern because they did not implicate social, political, or other
issues of importance to the community, but rather related to matters of his own
personal interest. See Ford, 6 F.3d at 754. Also, Hollis did not voice his concerns
outside of his workplace. Id.
The district court did not abuse its discretion in denying Hollis an
opportunity to amend his complaint prior to dismissing it with prejudice because
doing so would have been futile in light of Hollis’s three prior complaints. See
Dupree, 252 F.3d at 1163. Also, the district court previously cautioned Hollis that,
while he was afforded a degree of leniency as a pro se litigant, he nevertheless was
required to submit a complaint that complied with the standards of Fed. R. Civ. P.
8. See Corsello 428 F.3d at 1014-15. Accordingly, we affirm as to this issue.
AFFIRMED.