Case: 17-12775 Date Filed: 04/09/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12775 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cv-01968-RBD-TBS
JENNIFER SKYLES, as Personal Representative of her deceased spouse, Anthony Skyles,
Plaintiff - Appellant,
versus
MICHAEL J. McCOY, in his official capacity as Chief of Police of Altamonte Springs Police Department, et al.,
Defendants,
THE CITY OF ALTAMONTE SPRINGS,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 9, 2018) Case: 17-12775 Date Filed: 04/09/2018 Page: 2 of 7
Before WILLIAM PRYOR, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM: I. BACKGROUND
Appellant, Jennifer Skyles (“Skyles”), filed an eight-count complaint against
The City of Altamonte Springs, Florida (“the City”), and two other defendants,
police officer Matthew Fowler (“Officer Fowler”), and the former Chief of Police
Michael J. McCoy (“Chief McCoy”), under 42 U.S.C. § 1983 and Florida’s
Wrongful Death Act, Florida Statute § 768.28 (2017) in state court. The
allegations stemmed from an incident at Skyles’s home in June 2014. Skyles
called authorities to assist her in transporting her husband to the hospital when he
placed a knife to his throat and informed her that he felt suicidal. Her husband
suffered from mental illness and, according to Skyles, based on prior calls, the
authorities knew that he suffered from a mental illness and had been previously
released from a mental hospital facility. Officer Fowler arrived at the scene to
provide assistance and fatally shot Skyles’s husband.
After the case was removed to federal court, the City moved to dismiss
several counts: Count III, alleging negligence/wrongful death against the City;
Count V, alleging assault and battery against the City; Count VI, alleging
excessive force against Chief McCoy; Count VII, alleging negligent hiring against
the City; and Count VIII, alleging negligent hiring against Chief McCoy. The 2 Case: 17-12775 Date Filed: 04/09/2018 Page: 3 of 7
district court granted the motion to dismiss without prejudice and granted Skyles
leave to amend. In its order, the district court specifically directed Skyles that if
she chose to amend Count III, she must affirmatively identify all potential
beneficiaries in accordance with Florida’s Wrongful Death Act, and if she chose to
amend Counts VI, VII, and VIII, she must plead them as alternative theories of
liability for wrongful death. Due to confusion and lack of clarity in the complaint,
the district court further directed Skyles to notify the court whether Chief McCoy
and Officer Fowler had been served with the complaint and whether she was suing
them in their individual capacities.
Skyles, represented by counsel, filed a response indicating that she intended
to pursue the action against Chief McCoy and Officer Fowler only in their official
capacities. She failed to amend the complaint to correct the deficiencies identified
by the district court. Thus, the district court entered an order dismissing Chief
McCoy and Officer Fowler based on the well-settled case law that claims against
officers in their official capacities are, in actuality, claims against the City itself.
See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Upon
determining that the City was the only proper defendant in the action, the district
court directed the City to respond to the remaining counts. Hence, the City filed a
second motion to dismiss, requesting dismissal of Counts I, II, and IV. The City
3 Case: 17-12775 Date Filed: 04/09/2018 Page: 4 of 7
re-asserted the arguments it made in its first motion. Skyles did not file a response.
The district court granted the second motion to dismiss, dismissing Counts I, II,
and IV with prejudice. Skyles filed an appeal of the district court’s second
dismissal order.
II. DISCUSSION
Skyles asserts on appeal that the district court erred in dismissing her
complaint with prejudice. Generally, this court reviews de novo a district court’s
dismissal order under Federal Rule of Civil Procedure 12(b)(6), drawing all
reasonable factual inferences in favor of the plaintiff. Wiersum v. U.S. Bank, N.A.,
785 F.3d 483, 485 (11th Cir. 2015). However, in this case, Skyles has abandoned
any arguments that the district court erred on the merits by dismissing her
complaint. Therefore, this courts reviews for abuse of discretion the district
court’s decision whether to dismiss the complaint with or without prejudice.
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
The district court did not abuse its discretion. Skyles essentially argues that
the dismissal order was improper because the district court did not give her
sufficient time to amend her complaint, and she was entitled to at least one
opportunity to amend her complaint. To the contrary, the district court, in its first
order on the City’s motion to dismiss, dismissed without prejudice and gave Skyles
4 Case: 17-12775 Date Filed: 04/09/2018 Page: 5 of 7
leave to amend her complaint to cure the noted deficiencies; however, she failed to
exercise her right within the amendment deadline. The district court was under no
obligation to permit her a second leave to amend. This case is controlled by
Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541 (11th Cir. 2002), in
which this court held that a “district court is not required to grant a plaintiff leave
to amend h[er] complaint sua sponte when the plaintiff, who is represented by
counsel, never filed a motion to amend nor requested leave to amend before the
district court.” Id. at 542. Accordingly, we conclude that the district court acted
well within its discretion in dismissing Skyles’s complaint with prejudice.
Moreover, the district court acknowledged that leave to amend should be
freely given when justice so requires, but decided against giving Skyles a second
opportunity to amend her complaint because she exhibited a pattern of unjustified
dilatory conduct, including the failure to respond timely to the original motion to
dismiss because she failed to follow the district court’s local rules. Skyles also
failed to correct deficiencies in the complaint although the district court gave her
the opportunity to do so, see Friedlander v. Nims, 755 F.2d 810, 811–12 (11th Cir.
1985) (stating that dismissal with prejudice was appropriate where district court
gave “specific and repeated warnings” that amendment was necessary), failed to
motion for leave to amend, and failed to respond to the second motion to dismiss,
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Case: 17-12775 Date Filed: 04/09/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12775 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cv-01968-RBD-TBS
JENNIFER SKYLES, as Personal Representative of her deceased spouse, Anthony Skyles,
Plaintiff - Appellant,
versus
MICHAEL J. McCOY, in his official capacity as Chief of Police of Altamonte Springs Police Department, et al.,
Defendants,
THE CITY OF ALTAMONTE SPRINGS,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 9, 2018) Case: 17-12775 Date Filed: 04/09/2018 Page: 2 of 7
Before WILLIAM PRYOR, ANDERSON, and DUBINA, Circuit Judges.
PER CURIAM: I. BACKGROUND
Appellant, Jennifer Skyles (“Skyles”), filed an eight-count complaint against
The City of Altamonte Springs, Florida (“the City”), and two other defendants,
police officer Matthew Fowler (“Officer Fowler”), and the former Chief of Police
Michael J. McCoy (“Chief McCoy”), under 42 U.S.C. § 1983 and Florida’s
Wrongful Death Act, Florida Statute § 768.28 (2017) in state court. The
allegations stemmed from an incident at Skyles’s home in June 2014. Skyles
called authorities to assist her in transporting her husband to the hospital when he
placed a knife to his throat and informed her that he felt suicidal. Her husband
suffered from mental illness and, according to Skyles, based on prior calls, the
authorities knew that he suffered from a mental illness and had been previously
released from a mental hospital facility. Officer Fowler arrived at the scene to
provide assistance and fatally shot Skyles’s husband.
After the case was removed to federal court, the City moved to dismiss
several counts: Count III, alleging negligence/wrongful death against the City;
Count V, alleging assault and battery against the City; Count VI, alleging
excessive force against Chief McCoy; Count VII, alleging negligent hiring against
the City; and Count VIII, alleging negligent hiring against Chief McCoy. The 2 Case: 17-12775 Date Filed: 04/09/2018 Page: 3 of 7
district court granted the motion to dismiss without prejudice and granted Skyles
leave to amend. In its order, the district court specifically directed Skyles that if
she chose to amend Count III, she must affirmatively identify all potential
beneficiaries in accordance with Florida’s Wrongful Death Act, and if she chose to
amend Counts VI, VII, and VIII, she must plead them as alternative theories of
liability for wrongful death. Due to confusion and lack of clarity in the complaint,
the district court further directed Skyles to notify the court whether Chief McCoy
and Officer Fowler had been served with the complaint and whether she was suing
them in their individual capacities.
Skyles, represented by counsel, filed a response indicating that she intended
to pursue the action against Chief McCoy and Officer Fowler only in their official
capacities. She failed to amend the complaint to correct the deficiencies identified
by the district court. Thus, the district court entered an order dismissing Chief
McCoy and Officer Fowler based on the well-settled case law that claims against
officers in their official capacities are, in actuality, claims against the City itself.
See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Upon
determining that the City was the only proper defendant in the action, the district
court directed the City to respond to the remaining counts. Hence, the City filed a
second motion to dismiss, requesting dismissal of Counts I, II, and IV. The City
3 Case: 17-12775 Date Filed: 04/09/2018 Page: 4 of 7
re-asserted the arguments it made in its first motion. Skyles did not file a response.
The district court granted the second motion to dismiss, dismissing Counts I, II,
and IV with prejudice. Skyles filed an appeal of the district court’s second
dismissal order.
II. DISCUSSION
Skyles asserts on appeal that the district court erred in dismissing her
complaint with prejudice. Generally, this court reviews de novo a district court’s
dismissal order under Federal Rule of Civil Procedure 12(b)(6), drawing all
reasonable factual inferences in favor of the plaintiff. Wiersum v. U.S. Bank, N.A.,
785 F.3d 483, 485 (11th Cir. 2015). However, in this case, Skyles has abandoned
any arguments that the district court erred on the merits by dismissing her
complaint. Therefore, this courts reviews for abuse of discretion the district
court’s decision whether to dismiss the complaint with or without prejudice.
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
The district court did not abuse its discretion. Skyles essentially argues that
the dismissal order was improper because the district court did not give her
sufficient time to amend her complaint, and she was entitled to at least one
opportunity to amend her complaint. To the contrary, the district court, in its first
order on the City’s motion to dismiss, dismissed without prejudice and gave Skyles
4 Case: 17-12775 Date Filed: 04/09/2018 Page: 5 of 7
leave to amend her complaint to cure the noted deficiencies; however, she failed to
exercise her right within the amendment deadline. The district court was under no
obligation to permit her a second leave to amend. This case is controlled by
Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541 (11th Cir. 2002), in
which this court held that a “district court is not required to grant a plaintiff leave
to amend h[er] complaint sua sponte when the plaintiff, who is represented by
counsel, never filed a motion to amend nor requested leave to amend before the
district court.” Id. at 542. Accordingly, we conclude that the district court acted
well within its discretion in dismissing Skyles’s complaint with prejudice.
Moreover, the district court acknowledged that leave to amend should be
freely given when justice so requires, but decided against giving Skyles a second
opportunity to amend her complaint because she exhibited a pattern of unjustified
dilatory conduct, including the failure to respond timely to the original motion to
dismiss because she failed to follow the district court’s local rules. Skyles also
failed to correct deficiencies in the complaint although the district court gave her
the opportunity to do so, see Friedlander v. Nims, 755 F.2d 810, 811–12 (11th Cir.
1985) (stating that dismissal with prejudice was appropriate where district court
gave “specific and repeated warnings” that amendment was necessary), failed to
motion for leave to amend, and failed to respond to the second motion to dismiss,
5 Case: 17-12775 Date Filed: 04/09/2018 Page: 6 of 7
see Forman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962) (stating that it
is within the district court’s discretion to grant or deny an amendment and it should
not deny leave to amend unless there is undue delay, dilatory motive, and repeated
failure to cure deficiencies). Thus, under the totality of the circumstances, the
district court determined that granting Skyles leave to amend the complaint would
have been futile. The district court did not abuse its discretion in denying Skyles
another opportunity to amend her complaint.
Furthermore, Skyles contends that the district court granted the second
motion to dismiss solely because she did not file a response. Contrary to this
assertion, the district court dismissed Counts I, II, and IV based on the same
deficiencies previously addressed in its order granting the City’s first motion to
dismiss without prejudice. Assuming arguendo that the district court did grant the
second motion to dismiss solely because Skyles failed to file a response, she does
not assert on appeal why this would have been erroneous. Skyles references an
alleged confusion in the local rule at issue, but it is clear from the record that she
had notice of the rules and the consequences for failing to follow these rules. In
sum, Skyles cannot demonstrate that the district court abused its discretion in
granting the City’s second motion to dismiss with prejudice. Accordingly, we
affirm the district court’s order.
6 Case: 17-12775 Date Filed: 04/09/2018 Page: 7 of 7
AFFIRMED.