J.G. Bernard, Jr. v. Charles Rosenberg

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 14, 2018
• Docket: 17-15271
• Status: Unpublished

Opinion

Case: 17-15271 Date Filed: 08/14/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-15271 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cv-00322-WS-CAS

J. G. BERNARD, JR.,

Plaintiff - Appellant,

versus

CHARLES ROSENBERG,

Defendant - Appellee.

________________________

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

(August 14, 2018)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-15271 Date Filed: 08/14/2018 Page: 2 of 4

Mr. Bernard, acting pro se, appears to appeal the district court’s dismissal of

his case. 1 He attempted to obtain a writ of mandamus from the district court

against the former head of the DEA, Charles Rosenberg. He alleged a “massive

theft of pharmaceuticals” that occurred in “jails, prisons, state hospitals and

military bases,” leading to some sort of “very deadly public health crisis.”

In his first order, the magistrate judge found that the initial filing was

unsigned and thus was in violation of Fed. R. Civ. P. 11(a). He also found that it

violated Fed. R. Civ. P. 8(a)’s requirement of a “short and plain statement of the

grounds for the court's jurisdiction,” and that it failed to establish that venue was

proper. The magistrate judge provided Bernard with a civil complaint form,

explained the deficiencies, and gave him approximately three weeks in which to

file a new pleading.

Instead of complying, Bernard filed a “motion to expedite the proceeding,” a

“motion for an evidentiary hearing,” a “motion for extension of time to supplement

his petition,” and “supplemental pleadings of his original petition.” The magistrate

judge found that Bernard had not complied with the first order and that he had still

not shown venue. The magistrate judge also ordered that another civil complaint

form be mailed to Bernard.

1 His appellate filing is simultaneously titled a “brief,” a “petition for hearing enbanc [sic] cause of action,” and a “brief memorandum of legal authorities in support of petition for hearing enbanc [sic].”

2 Case: 17-15271 Date Filed: 08/14/2018 Page: 3 of 4

Again flaunting the magistrate judge’s order, Bernard did not make the

ordered corrections or fill out the form. Instead, he filed a “motion to supplement,

amend, change and expedite the proceeding.” The magistrate judge issued a report

and recommendation, advising that the case should be dismissed. Bernard still had

not filed an appropriate pleading, his allegations were “conclusory and

unsupported by any specific facts,” he had failed to show standing and venue, and

he had refused to follow the court’s orders. The district court adopted the report

and recommendation in full and dismissed the case. Bernard appealed. We affirm.

First, to whatever extent Bernard asks this court to grant a writ of

mandamus, we deny his request.

Second, the district court did not err in dismissing the case. We review for

an abuse of discretion. State Exch. Bank v. Hartline, 693 F.2d 1350, 1352 (11th

Cir. 1982). “While dismissal is an extraordinary remedy, dismissal upon disregard

of an order, especially where the litigant has been forewarned, generally is not an

abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

However, the court must typically find that the party acted willfully and that a

lesser sanction would not suffice to correct the inappropriate conduct. Zocaras v.

Castro, 465 F.3d 479, 483 (11th Cir. 2006). Although we give leniency to pro se

litigants, we do not have “license to serve as de facto counsel for a party or to

rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs.,

3 Case: 17-15271 Date Filed: 08/14/2018 Page: 4 of 4

Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citations

omitted).

Here, the district court gave Bernard two chances to replead, wrote him

instructions on how to properly do so, and provided him with two copies of the

proper form. He refused to comply with the court order. The record sufficiently

supports a finding that Bernard acted willfully and that a lesser sanction would not

suffice, especially in light of the fact that Bernard did not comply after two

repleader orders. Cf., e.g., Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985)

(affirming Rule 41(b) dismissal when counsel, inter alia, failed to submit a

preliminary statement despite the court’s “repeated insistence” that he do so).

Additionally, the magistrate judge warned him twice that failure to comply with

the order would result in dismissal. This further militates against an abuse of

discretion. Newsome, 863 F.2d at 837.

AFFIRMED.