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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10834 Non-Argument Calendar ________________________
D.C. Docket No. 5:15-cv-00035-MW-EMT
DONALD W. RAGER,
Plaintiff-Appellant,
versus
PAIGE AUGUSTINE, Warden FCI Marianna, KEITH BUFORD, Lieutenant FCI Marianna, S MALONE, Lieutenant FCI Marianna, EDDIE SNELL, Case Manager FCI Marianna, CONNIE COPELAND, Counselor FCI Marianna, et al,
Defendants-Appellees,
CHARLES E. SAMUELS, JR., et al,
Defendants. Case: 18-10834 Date Filed: 02/01/2019 Page: 2 of 15
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(February 1, 2019)
Before MARCUS, BRANCH and JULIE CARNES, Circuit Judges.
PER CURIAM:
Donald Rager, proceeding pro se, appeals from several district court orders,
the last of which finally disposed of all claims in favor of the defendants. On appeal,
Rager argues that: (1) the district court abused its discretion in denying his motion
to appoint counsel; (2) the district court erred in dismissing his Fourth, Fifth, Eighth,
and Fourteenth claims as time-barred; (3) the district court erred in denying his
motion to strike the declarations of defendants Thomas Malone, Craig Simmons, and
Harrel Watts in support of their summary judgment motion; (4) the district court
erred in granting summary judgment on Rager’s First Amendment claims in favor
of Simmons, Watts, and Malone, and in separately dismissing his First Amendment
claims against Warden Paige Augustine; and (5) the district court erred when it
dismissed his injunctive and declaratory relief claims against the Bureau of Prisons
(“BOP”). After thorough review, we affirm.
We review the district court’s denial of a motion to appoint counsel in civil
cases for abuse of discretion. Smith v. Fla. Dept. of Corr., 713 F.3d 1059, 1063
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(11th Cir. 2013). We also review the denial of a motion to strike declarations for
abuse of discretion. Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1343 (11th
Cir. 2000).
We review a district court’s dismissal of a complaint for failure to state a claim
pursuant to Rule 12(b)(6) de novo, viewing the plaintiff’s well-pleaded facts as true
and in the light most favorable to the plaintiff. Am. United Life Ins. Co. v. Martinez,
480 F.3d 1043, 1057 (11th Cir. 2007). We review the sua sponte dismissal of a
complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) de
novo, using the same standards that govern Federal Rule of Civil Procedure 12(b)(6)
dismissals. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). We review
de novo the district court’s interpretation and application of statutes of limitations.
Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006). We
also review a district court’s order granting summary judgment de novo, viewing all
the evidence, and drawing all reasonable inferences, in favor of the non-moving
party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). We
construe pro se filings liberally. Bellizia v. Fla. Dep’t of Corr., 614 F.3d 1326, 1329
(11th Cir. 2010).
First, we are unpersuaded by Rager’s claim that the district court abused its
discretion in denying his motion to appoint counsel. Appointment of counsel is only
warranted in extreme circumstances, and the district court has broad discretion to
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make such a decision. Smith, 713 F.3d at 1063. Appointment of counsel is
appropriate when “the facts and legal issues are so novel or complex as to require
the assistance of a trained practitioner.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th
Cir. 1990). We look to the factors outlined in Ulmer v. Chancellor, 691 F.2d 209,
213 (5th Cir. 1982), to determine if exceptional circumstances warrant appointment
of counsel. Smith, 713 F.3d at 1065 n.11. These factors include: (1) the type and
complexity of the plaintiff’s case, (2) whether the plaintiff is capable of adequately
presenting his case, (3) whether the plaintiff is in a position to adequately investigate
the case, (4) whether trial evidence will consist of conflicting testimony requiring
trial skills, and (5) whether appointment of counsel would be of service to the parties
and the Court. Ulmer, 691 F.3d at 213.
Here, the district court did not abuse its discretion in denying Rager’s motion
to appoint counsel. Rager says that counsel should have been appointed because the
issue he raised involving Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971), was novel and complex. As the record indicates, however, Rager
demonstrated he could adequately defend himself by the numerous documents he
authored and filed, and he used relevant case law from the Supreme Court and
various circuit courts to make the Bivens’ arguments he sought to raise. Further, the
district court dismissed Rager’s claims at the summary judgment and dismissal
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stages, before any trial skills were necessary. See Ulmer, 691 F.3d at 213. Thus,
the district court did not abuse its discretion in denying his motion.
We are also unpersuaded by Rager’s claim that the district court erred when
it dismissed his Fourth, Fifth, Eighth, and Fourteenth claims as time-barred by the
statute of limitations. The statute of limitations for filing a Bivens action in a federal
district court sitting in Florida is four years. See Uboh v. Reno, 141 F.3d 1000, 1002
(11th Cir. 1998) (noting that federal district courts apply their forum state’s personal
injury statute of limitations to both Bivens and 42 U.S.C. § 1983 actions); Chappell
v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (providing that the statute of
limitations for § 1983 actions filed in federal courts in Florida is four years). The
statute of limitations begins to run when the plaintiff knows, or should know: (1)
that he has suffered the injury that forms the basis of his complaint; and (2) who has
inflicted an injury. Chappell, 340 F.3d at 1283.
The general test for equitable tolling requires the party seeking tolling to prove
that: (1) he has been pursuing his rights diligently, and (2) some extraordinary
circumstance stood in his way and prevented timely filing. Villarreal v. R.J.
Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016). Even where a plaintiff
does not make any arguments about equitable tolling in his complaint, “[a] plaintiff
nonetheless can plead himself out of court by alleging facts that foreclose a finding
of diligence or extraordinary circumstances, both of which are required for equitable
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tolling.” Id. Florida law allows for tolling of the statute of limitations in civil rights
and personal injury cases exclusively when: (1) the person being sued is not in
Florida; (2) the person being sued cannot be located because of use of concealment
or false name; (3) there is adjudicated incapacity of the person entitled to sue; (3)
child payments are being made during paternity actions; (4) there is “pendency of
any arbitral proceeding pertaining to a dispute that is the subject of the action”; (5)
there is intervening bankruptcy; or (6) the minority or adjudicated incapacity of the
person entitled to sue occurs during time in which a parent, guardian, or guardian ad
litem does not exist. Fla. Stat. § 95.051(1)-(2). Florida courts have recognized the
application of equitable tolling during the exhaustion of administrative proceedings
when the plaintiff was “misled or lulled into inaction, has in some extraordinary way
been prevented from asserting his rights, or has timely asserted his rights in the
wrong forum.” State, Dep’t of Corr. v. Chestnut, 894 So. 2d 276, 279 (Fla. Dist. Ct.
App. 2005) (citing Machules v. Dep’t of Admin., 523 So. 2d 1132, 1134 (Fla. 1988)).
We’ve expressly declined to address the question of whether the statute of
limitations can be tolled while a prisoner is in the process of exhausting his
administrative remedies as a mandatory prerequisite for filing a federal lawsuit. Leal
v. Georgia Dep’t of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001) (“[W]e decline to
decide in the first instance the legal issue of whether the mandatory exhaustion
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requirement of 42 U.S.C. § 1997e(a) and the actual exhaustion of remedies by a
prisoner will operate to toll the statute of limitations.”).
The interests of justice can weigh in favor of equitable tolling to allow a
plaintiff to assert untimely claims if circumstances beyond the plaintiff’s control
prevented timely filing. Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006).
Equitable tolling allows a court to toll the statute of limitations until a time that
would have been fair for the statute of limitations to begin running on those claims.
Id. Equitable tolling is appropriate when a movant untimely files because of
extraordinary circumstances that are beyond his control and unavoidable even with
diligence, which the plaintiff bears the burden of showing. Id. Florida courts apply
equitable estoppel to prevent a defendant from asserting the statute of limitations as
a defense when the defendant’s misconduct induced the plaintiff to forbear bringing
suit within the applicable limitations period. Major League Baseball v. Morsani,
790 So. 2d 1071, 1079 (Fla. 2001).
The continuing violation doctrine permits a plaintiff to sue on an otherwise
time-barred claim when additional violations of the law occur within the statutory
period. See Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1221–22 (11th Cir.
2001). The purpose of permitting a plaintiff to maintain a cause of action on the
continuing violation theory is to permit the inclusion of acts whose character as
discriminatory acts was not apparent at the time they occurred. Id. at 1222.
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The record makes clear that Rager’s Fourth, Fifth, Eighth, and Fourteenth
Amendment claims are time-barred by Florida’s four-year statute of limitations. As
for equitable tolling under Florida law, Rager does not meet the standard because he
was not misled into inaction, he was not extraordinarily prevented from asserting his
rights, and he did not assert his rights in the wrong forum. See Chestnut, 894 So. 2d
at 279. Nor does he meet the standard for equitable tolling under the law of this
Court, since he has failed to prove that he diligently pursued his administrative
remedies or that the exhaustion of his administrative remedies prevented him from
timely filing a federal claim. See Villarreal, 839 F.3d at 971. As for the continuing
violation doctrine, it does not apply because Rager was aware that he incurred harm
at the time each harmful act took place. See Hipp, 252 F.3d at 1222. Nor does the
doctrine of equitable estoppel apply because Rager was not prevented from bring his
federal claims within the statute of limitations, since he knew he could appeal
denials, procedural denials, and non-responses of his administrative grievances to
exhaust his administrative remedies. See Morsani, 790 So. 2d at 1079.
Next, we find no merit to Rager’s claim that the district court erred when it
denied his motion to strike the declarations of Malone, Simmons, and Watts in
support of their summary judgment motion. A declaration in support of a motion
for summary judgment “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the . . . declarant is competent to
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testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Records kept in the regular
course of business are admissible as evidence. See Fed. R. Evid. 803(6).
On the record before us, the district court did not abuse its discretion in
denying Rager’s motion to strike certain defendants’ declarations in support of their
summary judgment motion. Simmons, Watts, and Malone stated in their declarations
that the declarations were based upon personal knowledge after reviewing official
business records. Official business records are admissible forms of evidence, and
Rager does not argue that these business records fail to meet the business records
hearsay exception. Fed. R. Evid. 803(6). Further, Simmons, Watts, and Malone
never changed the statements they made in the declarations. See Telfair, 216 F.3d
at 1342-43 (affirming the district court’s denial of a motion to strike an affidavit
even though a party had changed its views between the deposition and the filing of
the affidavit because the party had given a plausible explanation for the difference
to the district court). We, therefore, affirm the district court’s order denying Rager’s
motion to strike the declarations.
We also are unpersuaded by Rager’s claim that the district court erred when
it granted summary judgment on Rager’s First Amendment retaliation claims in
favor of Simmons, Watts, and Malone, and when it separately dismissed his First
Amendment retaliation claims against Warden Augustine. To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state
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a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim is facially plausible when the plaintiff pleads factual content that
allows the court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. Id. Although courts liberally construe pro se pleadings, we are
not required to “rewrite an otherwise deficient pleading in order to sustain an action.”
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (citation
omitted). Conclusory allegations, unwarranted deductions of facts, or legal
conclusions masquerading as facts will not prevent dismissal. Oxford Asset Mgmt.,
Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
Summary judgment is appropriate when the record demonstrates that there is
no genuine dispute as to any material fact, and the movant is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a). An issue of fact is not genuine unless a
reasonable jury could return a verdict in favor of the non-moving party. Morton v.
Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013).
To obtain reversal of a district court judgment that is based on multiple,
independent grounds, an appellant must convince us that every stated ground for
judgment against him is incorrect. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 680 (11th Cir. 2014). When an appellant fails to challenge properly on appeal
one of the grounds for which the district court based its judgment, he is deemed to
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have abandoned any challenge of that ground, and it follows that the judgment is due
to be affirmed. Id.
An inmate’s First Amendment free speech rights are violated when he is
punished for filing a grievance concerning the conditions of his imprisonment.
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008). However, “[n]o [f]ederal
civil action may be brought by a prisoner confined in a . . . correctional facility, for
mental or emotional injury suffered while in custody without a prior showing of
physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). An inmate
may pursue an injunction to seek relief for constitutional violations that do not
involve physical injury, but § 1997e(e) bars constitutional claims for damages unless
the inmate can show a physical injury occurred. See Al-Amin v. Smith, 637 F.3d
1192, 1197-98 (11th Cir. 2011). Notably, § 1997e(e) does not bar claims for nominal
damages. Brooks v. Warden, 800 F.3d 1295, 1307-08 (11th Cir. 2015).
The defense of qualified immunity shields government officials performing
discretionary acts “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Hadley
v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). To be entitled to qualified
immunity, a public official “must first prove that he was acting within the scope of
his discretionary authority when the allegedly wrongful acts occurred.” Lee v.
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Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quotation omitted). “Once the
defendant establishes that he was acting within his discretionary authority, the
burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Id.
At that point, the plaintiff must establish that: (1) the facts, taken in the light most
favorable to the party asserting the injury, show the officer’s conduct violated a
federal right; and (2) the right in question was “clearly established” at the time of
the violation. Tolan v. Cotton, 572 U.S. 650, 655-56 (2014). The plaintiff must
satisfy both prongs of the test to overcome a defense of qualified immunity, although
courts have discretion to decide which question to address first. Melton v. Abston,
841 F.3d 1207, 1221 (11th Cir. 2016).
As for Rager’s First Amendment retaliation claims against Malone, Simmons,
and Watts, the district court did not err by granting summary judgment on these
claims. The court determined, among other things, that no existing law clearly
established at the time of the alleged conduct that it was a violation of the First
Amendment for Malone to threaten Rager to persuade him to withdraw his
grievances, or for Watts and Simmons to unjustifiably return grievances. Because
Rager has not made any argument on appeal concerning the “clearly established”
prong of the analysis -- necessary for Rager to overcome the qualified immunity
defense -- he has waived any challenge to the qualified immunity determination on
appeal. See id.; Sapuppo, 739 F.3d at 680.
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As for Rager’s First Amendment retaliation claim against Warden Augustine,
the district court did not err by sua sponte dismissing these claims for failure to state
a claim for which relief could be granted. Rager claims that, on March 22, 2011,
Warden Augustine sent Malone to meet with Rager and tell him to drop his
administrative grievance. However, it is by no means clear that a damages remedy
is warranted for a First Amendment retaliation claim like this one. See generally
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). Moreover, Rager has not alleged that
Warden Augustine’s actions in sending Malone were related to a physical injury or
a sexual act, so Rager cannot obtain punitive or compensatory relief. See 42 U.S.C.
§ 1997e(e); Smith, 637 F.3d at 1197-98. And Rager’s amended complaint did not
state a claim for nominal damages against Augustine. See Warden, 800 F.3d at
1307-08. Because there is no relief that may be granted on Rager’s retaliation claim
against Warden Augustine, we affirm the district court’s dismissal of this claim.
Finally, we are compelled to reject Rager’s claim that the district court erred
when it dismissed his injunctive and declaratory relief claims against the BOP. We
may not review an issue that “no longer presents a live controversy with respect to
which the court can give meaningful relief,” as the issue is moot. Christian Coalition
of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011) (quotation
omitted). We may determine that an issue is moot at any time in a case and not only
when the case was filed. Id. at 1189-90. “Dismissal of a moot case is required
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because mootness is jurisdictional.” Sierra Club v. U.S. E.P.A., 315 F.3d 1295, 1299
(11th Cir. 2002).
Pursuant to 28 U.S.C. § 2201, a court only may issue a declaratory judgment
in cases of “actual controversy.” Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th
Cir. 1985). This means that, in order to state a claim under § 2201, a plaintiff must
allege facts demonstrating that the harm caused by the defendants is ongoing or will
be repeated in the future. Id. at 1552. A declaration that only past conduct violated
a plaintiff’s constitutional rights would be “nothing more than a gratuitous comment
without any force or effect.” Id. (quotation omitted).
For starters, Rager’s injunctive claim against the BOP is moot because, as the
record reveals, Rager is no longer housed in the same facility. See Christian
Coalition of Fla., 662 F.3d at 1189. As for his claim for declaratory relief, it is true
that several of Rager’s administrative grievances were never answered.
Nevertheless, Rager’s injuries are not ongoing because his administrative remedy
timelines show he was aware he could take the absence of a response to mean his
request had been denied. See 28 C.F.R. § 542.18. Thus, Rager has established only
that past conduct violated his rights, and declaratory relief would have no force or
effect. See Emory, 756 F.2d at 1552. Finally, the Supreme Court has said that a
Bivens remedy is not the proper vehicle for altering the BOP’s policies. Correctional
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Services Corp. v. Malesko, 534 U.S. 61, 74 (2001). Accordingly, we affirm the
district court’s dismissal of Rager’s claims against the BOP.
AFFIRMED.