Case: 17-13636 Date Filed: 02/14/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13636 Non-Argument Calendar ________________________
D.C. Docket No. 1:14-cv-01623-TWT
ELISHA GILBERT, JR.,
Plaintiff-Appellant,
versus
FREDERICK L. DANIELS, JR., Chairman, DeKalb County, BARBARA BABBIT KAUFMAN, Vice Chairman, Fulton County, HAROLD BUCKLEY, SR., Treasurer, DeKalb County, JUANITA JONES ABERNATHY, Secretary, City of Atlanta, ROBERT L. ASHE, III, City of Atlanta, et al.,
Defendants-Appellees. Case: 17-13636 Date Filed: 02/14/2018 Page: 2 of 7
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 14, 2018)
Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
Elisha Gilbert, Jr., filed a pro se lawsuit against thirty or so defendants
arising out of his July 2012 arrest at the Five Points MARTA Station in Atlanta,
Georgia. The defendants filed motions to dismiss on various grounds, and the
district court dismissed the action in a brief order. On appeal, we found that
Gilbert’s complaint was a “shotgun pleading” that did not give fair notice of its
claims, but we concluded that the court did not adequately explain its reasons for
dismissal and that Gilbert was probably entitled to at least one chance to amend his
complaint. Gilbert v. Daniels, 624 Fed. App’x 716 (11th Cir. 2015). Accordingly,
we “vacate[d] the dismissal of Gilbert’s complaint and we remand[ed] for the
district court to develop the record and determine, in the first instance, whether
Gilbert should be instructed to replead his claims or whether amendment would be
futile.” Id. at 718.
After the case was returned on remand, the district court, consistent with our
mandate, granted the defendants’ motions to dismiss on the ground that the
2 Case: 17-13636 Date Filed: 02/14/2018 Page: 3 of 7
complaint was a shotgun pleading. The court then ordered Gilbert to file within 28
days an amended complaint that complied with the Federal Rules of Civil
Procedure. That order was entered on November 1, 2016. A copy of the district
court’s order was mailed to Gilbert, but it was returned to the clerk because no one
by his name resided at the address on file for him.
Because Gilbert did not respond within 28 days, the district court dismissed
Gilbert’s lawsuit on December 14, 2016. A copy of the district court’s dismissal
order was mailed to the address on file for Gilbert, but, again, it was returned to the
clerk as undeliverable.
Over six months later, on June 10, 2017, Gilbert filed a motion for relief
from the judgment under Rules 60(a) and (b)(6) of the Federal Rules of Civil
Procedure.1 In that motion, Gilbert stated that he did not receive a copy of the
court’s order giving him 28 days to file an amended complaint. He explained that
he was arrested on September 4, 2016, about two months before the order issued,
and held in custody at the DeKalb County jail until March 30, 2017. He claimed
that he made the court aware of his mailing address at the jail through his filings in
a separate case, but that the court failed to send him notice of the order and
1 Just prior to filing the Rule 60 motion, he also filed a petition for a writ of mandamus with this Court. We denied Gilbert leave to proceed in forma pauperis, concluding that he had available the alternative remedy of moving for relief under Rule 60(b), and then dismissed the mandamus petition when Gilbert did not pay the necessary filing fee. 3 Case: 17-13636 Date Filed: 02/14/2018 Page: 4 of 7
judgment. He asked the court to correct the error and allow him to file an amended
complaint.
The district court denied Gilbert’s Rule 60 motion. The court noted that
“[a]t no time did the Defendant notify the Court that he was in jail or that his
mailing address had changed.” Finding that Gilbert’s failure to receive the court’s
prior order, and his failure to comply with that order, was “entirely” his own fault,
the court concluded that he was not entitled to relief from the judgment. Gilbert
timely appealed the denial of his post-judgment motion.
On appeal, Gilbert essentially argues that the district court had constructive
notice of his address change and that such notice should have been sufficient.
Gilbert contends that the court mailed the order permitting him to amend his
complaint to the wrong address, despite the court’s alleged knowledge that his
address had changed because, while he was in custody, he filed a habeas petition
that included a different return address and was assigned to the same district judge.
Rule 60(b)(6) allows for relief from an order for any reason that justifies
relief. Fed. R. Civ. P. 60(b)(6). An appeal of a ruling on a Rule 60(b) motion is
narrow in scope, addressing only the propriety of the denial or grant of relief and
not issues regarding the underlying judgment. Am. Bankers Ins. Co. of Fla. v. Nw.
Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999).
4 Case: 17-13636 Date Filed: 02/14/2018 Page: 5 of 7
We review the denial of a Rule 60(b) motion for an abuse of discretion. Big
Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842 (11th Cir. 2008).
A district court abuses its discretion when it relies on clearly erroneous facts,
applies an incorrect legal standard, or commits a clear error of judgment. See Klay
v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004). “Discretion
means the district court has a range of choice, and that its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake
of law.” Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir.
2005) (quotation marks omitted). In general, relief under Rule 60(b) is warranted
only where, “absent such relief, an ‘extreme’ and ‘unexpected’ hardship will
result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984).
Here, the district court did not abuse its discretion in denying Gilbert’s Rule
60(b) motion. The court had dismissed Gilbert’s lawsuit for failing to comply with
its November 1, 2016, order directing him to file an amended complaint within 28
days. 2 See Betty K Agencies, Ltd., 432 F.3d at 1337 (stating that Rule 41(b), Fed.
R. Civ. P., authorizes dismissal of an action sua sponte for failure to comply with
the rules or any order of the court). While Gilbert did not know of that November
2 Whether the district court abused its discretion in dismissing Gilbert’s action is not before us because an appeal from the denial of a Rule 60(b) motion generally does not bring up issues regarding the underlying judgment. Am. Bankers Ins. Co., 198 F.3d at 1338.
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Case: 17-13636 Date Filed: 02/14/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13636 Non-Argument Calendar ________________________
D.C. Docket No. 1:14-cv-01623-TWT
ELISHA GILBERT, JR.,
Plaintiff-Appellant,
versus
FREDERICK L. DANIELS, JR., Chairman, DeKalb County, BARBARA BABBIT KAUFMAN, Vice Chairman, Fulton County, HAROLD BUCKLEY, SR., Treasurer, DeKalb County, JUANITA JONES ABERNATHY, Secretary, City of Atlanta, ROBERT L. ASHE, III, City of Atlanta, et al.,
Defendants-Appellees. Case: 17-13636 Date Filed: 02/14/2018 Page: 2 of 7
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(February 14, 2018)
Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
Elisha Gilbert, Jr., filed a pro se lawsuit against thirty or so defendants
arising out of his July 2012 arrest at the Five Points MARTA Station in Atlanta,
Georgia. The defendants filed motions to dismiss on various grounds, and the
district court dismissed the action in a brief order. On appeal, we found that
Gilbert’s complaint was a “shotgun pleading” that did not give fair notice of its
claims, but we concluded that the court did not adequately explain its reasons for
dismissal and that Gilbert was probably entitled to at least one chance to amend his
complaint. Gilbert v. Daniels, 624 Fed. App’x 716 (11th Cir. 2015). Accordingly,
we “vacate[d] the dismissal of Gilbert’s complaint and we remand[ed] for the
district court to develop the record and determine, in the first instance, whether
Gilbert should be instructed to replead his claims or whether amendment would be
futile.” Id. at 718.
After the case was returned on remand, the district court, consistent with our
mandate, granted the defendants’ motions to dismiss on the ground that the
2 Case: 17-13636 Date Filed: 02/14/2018 Page: 3 of 7
complaint was a shotgun pleading. The court then ordered Gilbert to file within 28
days an amended complaint that complied with the Federal Rules of Civil
Procedure. That order was entered on November 1, 2016. A copy of the district
court’s order was mailed to Gilbert, but it was returned to the clerk because no one
by his name resided at the address on file for him.
Because Gilbert did not respond within 28 days, the district court dismissed
Gilbert’s lawsuit on December 14, 2016. A copy of the district court’s dismissal
order was mailed to the address on file for Gilbert, but, again, it was returned to the
clerk as undeliverable.
Over six months later, on June 10, 2017, Gilbert filed a motion for relief
from the judgment under Rules 60(a) and (b)(6) of the Federal Rules of Civil
Procedure.1 In that motion, Gilbert stated that he did not receive a copy of the
court’s order giving him 28 days to file an amended complaint. He explained that
he was arrested on September 4, 2016, about two months before the order issued,
and held in custody at the DeKalb County jail until March 30, 2017. He claimed
that he made the court aware of his mailing address at the jail through his filings in
a separate case, but that the court failed to send him notice of the order and
1 Just prior to filing the Rule 60 motion, he also filed a petition for a writ of mandamus with this Court. We denied Gilbert leave to proceed in forma pauperis, concluding that he had available the alternative remedy of moving for relief under Rule 60(b), and then dismissed the mandamus petition when Gilbert did not pay the necessary filing fee. 3 Case: 17-13636 Date Filed: 02/14/2018 Page: 4 of 7
judgment. He asked the court to correct the error and allow him to file an amended
complaint.
The district court denied Gilbert’s Rule 60 motion. The court noted that
“[a]t no time did the Defendant notify the Court that he was in jail or that his
mailing address had changed.” Finding that Gilbert’s failure to receive the court’s
prior order, and his failure to comply with that order, was “entirely” his own fault,
the court concluded that he was not entitled to relief from the judgment. Gilbert
timely appealed the denial of his post-judgment motion.
On appeal, Gilbert essentially argues that the district court had constructive
notice of his address change and that such notice should have been sufficient.
Gilbert contends that the court mailed the order permitting him to amend his
complaint to the wrong address, despite the court’s alleged knowledge that his
address had changed because, while he was in custody, he filed a habeas petition
that included a different return address and was assigned to the same district judge.
Rule 60(b)(6) allows for relief from an order for any reason that justifies
relief. Fed. R. Civ. P. 60(b)(6). An appeal of a ruling on a Rule 60(b) motion is
narrow in scope, addressing only the propriety of the denial or grant of relief and
not issues regarding the underlying judgment. Am. Bankers Ins. Co. of Fla. v. Nw.
Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999).
4 Case: 17-13636 Date Filed: 02/14/2018 Page: 5 of 7
We review the denial of a Rule 60(b) motion for an abuse of discretion. Big
Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842 (11th Cir. 2008).
A district court abuses its discretion when it relies on clearly erroneous facts,
applies an incorrect legal standard, or commits a clear error of judgment. See Klay
v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004). “Discretion
means the district court has a range of choice, and that its decision will not be
disturbed as long as it stays within that range and is not influenced by any mistake
of law.” Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir.
2005) (quotation marks omitted). In general, relief under Rule 60(b) is warranted
only where, “absent such relief, an ‘extreme’ and ‘unexpected’ hardship will
result.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984).
Here, the district court did not abuse its discretion in denying Gilbert’s Rule
60(b) motion. The court had dismissed Gilbert’s lawsuit for failing to comply with
its November 1, 2016, order directing him to file an amended complaint within 28
days. 2 See Betty K Agencies, Ltd., 432 F.3d at 1337 (stating that Rule 41(b), Fed.
R. Civ. P., authorizes dismissal of an action sua sponte for failure to comply with
the rules or any order of the court). While Gilbert did not know of that November
2 Whether the district court abused its discretion in dismissing Gilbert’s action is not before us because an appeal from the denial of a Rule 60(b) motion generally does not bring up issues regarding the underlying judgment. Am. Bankers Ins. Co., 198 F.3d at 1338. Moreover, while Federal Rule of Appellate Procedure 4(a)(6) allows district courts to reopen the time to appeal if the moving party did not receive notice of the judgment, Gilbert’s Rule 60 motion cannot be construed as a motion under Rule 4(a)(6) because it was not filed within 180 days after the judgment was entered. See Fed. R. App. P. 4(a)(6)(B). 5 Case: 17-13636 Date Filed: 02/14/2018 Page: 6 of 7
1 order until much later, the record supports the court’s finding that his lack of
notice was due to his failure to notify the court that he was in jail or that his
mailing address had changed. Even pro se parties are required to comply with “the
relevant law and rules of court,” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989), and Northern District of Georgia Local Rule 41.2(B) requires “a party
appearing pro se to keep the clerk’s office informed of any change in address
and/or telephone number” and warns that the failure to do so may lead to dismissal
or a default judgment. N.D. Ga. L.R. 41.2(B). Because Gilbert failed to update the
court of his address change or his detention, and that failure led to Gilbert’s lack of
compliance with the order to amend his complaint, the district court’s decision to
deny relief under Rule 60(b) was within the range of reasonable choices. See Betty
K Agencies, 432 F.3d at 1337.
Gilbert’s claim that he adequately advised the district court of his new
mailing address is unpersuasive. According to Gilbert, the court should have
known of his mailing address at the jail because it was included in several filings in
a separate habeas corpus case, which was assigned to the same district judge.
However, Gilbert’s filings in his habeas action did not provide sufficient notice of
an address change in his civil-rights action. His habeas case was an entirely
separate action proceeding under a separate docket number. Nothing in his habeas
filings made clear that he also had a civil-rights case before the court. Nor is it
6 Case: 17-13636 Date Filed: 02/14/2018 Page: 7 of 7
reasonable to expect the clerk or the court to attempt to cross-reference filings in
separate cases for the purpose of updating a plaintiff’s address, particularly where,
as here, all that the two cases shared was a named party.
We note as well that Gilbert was not prevented from communicating with
the court during his detention at the DeKalb County jail. Gilbert’s habeas filings
during his detention show that he had access to the courts, so he could have
updated the court on his address. And even after his release from jail on March 30,
2017, Gilbert did not make contact with the district court until June 5, 2017, in
connection with a mandamus petition that he filed with this Court, which delay
could reasonably have factored into the district court’s decision to deny relief.
For all of these reasons, we conclude that the district court did not abuse its
discretion in denying Gilbert’s post-judgment motion under Rule 60(b)(6). As for
the denial of his request for relief under Rule 60(a), that, too, was not erroneous.
Rule 60(a) allows a district court to “correct a clerical mistake or a mistake arising
from oversight or omission” in the record. Fed. R. Civ. P. 60(a). Rule 60(a) does
not apply here, however, because Gilbert sought substantive relief from the
judgment. See Weeks v. Jones, 100 F.3d 124, 128–29 (11th Cir. 1996) (errors that
affect substantial rights of the parties are beyond the scope of Rule 60(a)).
The denial of Gilbert’s Rule 60 motion is AFFIRMED.