Corey Allan Donaldson v. Tony Normand
Opinion
[DO NOT PUBLISH]
In the
United States Court of Appeals For the Eleventh Circuit
No. 23-10930
Non-Argument Calendar
COREY ALLAN DONALDSON, Plaintiff-Appellant,
versus GEO GROUP, INC., et al.,
Defendants,
TONY NORMAND, Federal Agent (F.B.O.P),
Defendant-Appellee.
USCA11 Case: 23-10930 Document: 27-1 Date Filed: 02/28/2024 Page: 2 of 8
2 Opinion of the Court 23-10930
Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 5:18-cv-00007-LGW-BWC
Before ROSENBAUM, GRANT and DUBINA, Circuit Judges. PER CURIAM:
Appellant Corey Donaldson, proceeding pro se, appeals the district court’s order dismissing his Bivens 1 complaint without prejudice for failure to properly exhaust administrative remedies as required under the Prison Litigation Reform Act (“PLRA”) of 1995, 42 U.S.C. § 1997e. He argues on appeal that the district court misapplied our court’s mandate when we remanded his case due to a change in this court’s PLRA precedent. He also argues that Appellee /Defendant, Tony Normand, untimely filed an administrative exhaustion remedy and improperly raised it in his motion for summary judgment. Donaldson lastly contends that Normand failed to properly deny any of the allegations contained in his complaint, thus admitting those allegations. Having read the parties’ briefs and reviewed the record, we affirm the district court’s order dismissing Donaldson’s Bivens complaint without prejudice for failure
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 91 S. Ct. 1999 (1971).
23-10930 Opinion of the Court 3
to properly exhaust administrative remedies as required under the PLRA.
I.
We generally review rulings on cross-motions for summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party as to each motion. Signor v. Safeco Ins. Co. of Illinois, 72 F.4th 1223, 1227 (11th Cir. 2023). Likewise, we generally review an order dismissing a complaint de novo. Thompson v. Relation Serve Media, Inc., 610 F.3d 628, 633 (11th Cir. 2010). A denial of a motion to dismiss without prejudice is not an adjudication on the merits, and it does not, on its own, prevent the party from later asserting the same claim. See Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003). However, where a district court dismisses a complaint for failure to exhaust administrative remedies, we review for clear error the district court’s factual findings. See Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008). A defendant bears the burden of proving that the plaintiff failed to exhaust his administrative remedies . Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
Exhaustion of administrative remedies is a matter in abatement that generally does not address the merits of the case. Bryant, 530 F.3d at 1374. Thus, an exhaustion defense “should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment,” because such a defense “is not ordinarily the proper subject for a summary judgment.” Id. at 1374-75 (quotation marks omitted). Thus, we treat exhaustion defenses as an unenumerated defense under Rule 12(b). Id. at 1375. When considering
4 Opinion of the Court 23-10930
such a motion, “it is proper for a judge to consider facts outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376 (footnote omitted).
Issues not raised in an appellant’s initial brief are deemed abandoned and will not be addressed absent extraordinary circumstances . United States v. Campbell, 26 F.4th 860, 871-72 (11th Cir. 2022) (en banc), cert. denied, ___ U.S. ___, 143 S. Ct. 95 (2022). While we construe pro se briefs liberally, an issue not briefed on appeal by a pro se litigant is deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). “We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
“An appellate decision binds all subsequent proceedings in the same case,” including both explicit rulings and issues “decided by implication on the prior appeal.” United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). When a district court is acting under a mandate from our court, it cannot vary, alter, or otherwise examine the mandate for any purpose other than execution. Id. Moreover , a district court is required to follow our mandate on remand, and it cannot decide or assert jurisdiction over issues outside the scope of a limited mandate. Id. We review de novo a district court’s compliance with our mandate in a previous appeal. United States v. Crape, 603 F.3d 1237, 1241 (11th Cir. 2010).
23-10930 Opinion of the Court 5
II.
Under Rule 12(a)(4), a party has 14 days to file a responsive pleading following the court’s denial of a motion. Fed. R. Civ. P. 12(a)(4). Rule 55(a) requires an entry of default against a party who fails to timely file a responsive pleading. Fed. R. Civ. P. 55(a). However, the district court is permitted to “set aside an entry of default for good cause.” Id. at 55(c). In this context, “[g]ood cause is a mutable standard,” and it “is also a liberal one—but not so elastic as to be devoid of substance.” Compania Interamericana Exp.- Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (quotation marks omitted). Moreover, default judgment is a drastic remedy, and it is preferred that courts resolve cases on the merits. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985).
A responsive pleading must “admit or deny the allegations asserted against it by an opposing party.” Fed. R. Civ. P. 8(b)(1)(B). An answer to a complaint is a responsive pleading under this rule. Fed. R. Civ. P. 12(a)(1)(A). A motion to dismiss is generally not considered a responsive pleading under the Federal Rules of Civil Procedure. See Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1291 (11th Cir. 2007) (“For purposes of [Rule 15(a)], a motion to dismiss is not a responsive pleading”).
III.
The record demonstrates that Donaldson has abandoned on appeal the issue of whether the district court erred in dismissing his amended complaint for failure to exhaust administrative remedies. Even under liberal construction, his appellate brief does not
6 Opinion of the Court 23-10930
“plainly and prominently” address or contest the district court’s findings related to Normand’s exhaustion argument. Thus, Donaldson has failed to adequately raise this issue in his brief, and he has thus abandoned it on appeal.
Donaldson’s other arguments on appeal, which essentially contest the district court’s authority to consider Normand’s motion to dismiss, do not save his appeal. First, at the time Donaldson filed his amended complaint, we had ruled that the PLRA barred a prisoner who suffered no physical injury from recovering punitive damages in an action pursuant to the PLRA. See Al-Amin v. Smith, 637 F.3d 1192, 1199 (11th Cir. 2011), overruled by Hoever v. Marks, 993 F.3d 1353, 1362 (11th Cir. 2021) (en banc). The district court initially dismissed Donaldson’s claim under that authority. While Donaldson’s appeal of the district court’s initial dismissal was pending , we overruled Al-Amin and held that the PLRA does not bar punitive damages in the absence of physical injury. Hoever, 993 F.3d at 1362. Thus, we vacated the district court’s initial order of dismissal and remanded the case for further consideration in light of our holding in Hoever.
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