Barry David Thompson v. Deputy Brian Luoma

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 23, 2018
• Docket: 18-10807
• Status: Unpublished

Opinion

Case: 18-10807 Date Filed: 10/23/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10807 Non-Argument Calendar ________________________

D.C. Docket No. 6:17-cv-01396-RBD-KRS

BARRY DAVID THOMPSON,

Plaintiff-Appellant,

versus

DEPUTY BRIAN LUOMA, Badge 2513, VOLUSIA COUNTY SHERIFF'S OFFICE, individual capacity, DEPUTY SUPERVISOR,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(October 23, 2018) Case: 18-10807 Date Filed: 10/23/2018 Page: 2 of 4

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:

Barry David Thompson appeals pro se the dismissal of his complaint against

the Volusia County Sheriff’s Office, Deputy Sheriff Brian Luoma, and an unnamed

officer. See 42 U.S.C. § 1983. He also appeals the denial of his two motions to

alter or amend the judgment and his motion for clarification. See Fed. R. Civ. P.

59(e). We affirm.

The district court sua sponte dismissed Thompson’s complaint as barred

under Heck v. Humphrey, 512 U.S. 477 (1994), because his challenges to his traffic

stop and ensuing seizure of drugs would necessarily imply the invalidity of his

convictions following his pleas of guilty to trafficking in hydromorphone and

trespassing on school property. See 28 U.S.C. § 1915A(a). Later, the district court

denied Thompson’s motion to alter or amend the judgment with the explanation

that, although “a question exists whether Heck applies in certain circumstances,”

its bar applied to Thompson because he “had an opportunity to pursue an appeal in

state court, and habeas relief was available to him prior to his release from state

custody.” The district court denied Thompson’s second motion to alter or amend

on the ground that Thompson was “attempting to relitigate old matters or raise new

arguments,” and the district court summarily denied Thompson’s motion for

clarification.

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We lack jurisdiction to review the dismissal of Thompson’s complaint or the

denial of his first motion to alter or amend the judgment. After the dismissal of his

complaint, Thompson timely filed a postjudgment motion within “28 days after the

entry of the judgment,” Fed. R. Civ. P. 59(e), that tolled his time to appeal until the

district court denied the motion on December 20, 2017, see Fed. R. App. P.

4(a)(4)(A)(iv). Thompson then had 30 days, or until January 19, 2018, to appeal.

See Fed. R. App. P. 4(a)(1)(a). On January 2, 2018, Thompson filed a second

motion to alter or amend, but that successive postjudgment motion “[did] not again

terminate the running of the time for appeal.” See Dixie Sand & Gravel Co., Inc. v.

Tenn. Valley Auth., 631 F.2d 73, 75 (5th Cir. 1980). The notice of appeal that

Thompson filed on February 27, 2018, was timely only with respect to his second

motion to alter or amend and his motion for clarification.

The district court did not abuse its discretion when it denied Thompson’s

second motion to alter or amend the judgment. To obtain relief under Federal Rule

of Civil Procedure 59(e), a movant must identify “newly-discovered evidence [that

supports his claim] or manifest errors of law or fact” in the judgment. Arthur v.

King, 500 F.3d 1335, 1343 (11th Cir. 2007). Thompson moved the district court to

recognize an exception to Heck on the ground he could not have pursued “a

meaningful state appeal” because neither he nor any “of [his] witnesses . . . were

allowed to testify” and Officer Luoma gave “false testimony . . . that [Thompson]

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was on school property” during the “motion to suppress hearing.” But facts

pertaining to Thompson’s pretrial suppression hearing were not newly discovered

because they were available to him when he filed his complaint. See id. (“A Rule

59(e) motion cannot be used to relitigate old matters, raise argument or present

evidence that could have been raised prior to the entry of judgment.”).

Thompson has abandoned any challenge that he could have made to the

denial of his motion for clarification. “While we read briefs filed by pro se litigants

liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.”

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (citations omitted).

Because Thompson’s pro se brief does not mention his motion for clarification, we

deem abandoned any challenge he could have made to its summary denial.

We AFFIRM the dismissal of Thompson’s complaint.