Case: 19-13189 Date Filed: 04/03/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13189 Non-Argument Calendar ________________________
D.C. Docket No. 3:19-cv-00161-BJD-JRK
MARGUERITE SMITH,
Plaintiff - Appellant,
versus
SECRETARY OF VETERANS AFFAIRS, JULIANNA BOOR, Director, Department of Veterans Administration St Petersburg Office: in her individual personal capacity,
Defendants - Appellees. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 3, 2020)
Before WILSON, BRANCH, and ANDERSON, Circuit Judges
PER CURIAM: Case: 19-13189 Date Filed: 04/03/2020 Page: 2 of 7
Marguerite Smith, proceeding pro se, appeals the district court’s dismissal
with prejudice of her complaint on the grounds that her claims failed to state a
claim and were barred by res judicata. The Secretary of Veterans Affairs has
moved for summary affirmance and to stay the briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
We review de novo a district court’s grant of a motion to dismiss with
prejudice. Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1037
(11th Cir. 2008). To prevent dismissal under Rule 12(b)(6), the plaintiff must allege
sufficient facts to state a claim for relief that is “plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Claims are plausible when the plaintiff
pleads facts that allow the court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pro se pleadings are held to a less-strict standard than counseled pleadings and are
2 Case: 19-13189 Date Filed: 04/03/2020 Page: 3 of 7
liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
When ruling on a Rule 12(b)(6) motion to dismiss, the district court is
permitted to take judicial notice of public records without needing to convert the
motion into a motion for summary judgment, an action which would require that the
non-moving party receive notice of the movant’s submissions in order to address
their relevance. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-78 (11th
Cir. 1999). Under Federal Rule of Evidence 201, the district court may take judicial
notice of a fact that is (1) generally known within the court’s jurisdiction, and (2)
can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201.
Under the doctrine of res judicata, or claim preclusion, a claim is barred by a
prior suit if: “(1) there is a final judgment on the merits; (2) the decision was rendered
by a court of competent jurisdiction; (3) the parties . . . are identical in both suits;
and (4) the same cause of action is involved in both cases.” Griswold v. Cnty. of
Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010) (quotation omitted). Generally,
an order dismissing a complaint is not final and appealable unless the order holds
that it dismisses the entire action or that the complaint cannot be saved by
amendment. Garfield v. NDC Health Corp, 466 F.3d 1255, 1260 (11th Cir. 2006).
However, where a complaint is dismissed without prejudice and the plaintiff files an
3 Case: 19-13189 Date Filed: 04/03/2020 Page: 4 of 7
appeal instead of amending the complaint, the dismissal becomes final and
appealable and the plaintiff waives the right to later amend the complaint. Id. at
1260-61. Two cases are the same for purposes of res judicata “if a case arises out
of the same nucleus of operative facts, or is based upon the same factual predicate,
as a former action.” Griswold, 598 F.3d at 1293.
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), the Supreme Court held that injured plaintiffs could bring a cause
of action for damages against federal officers based on violations of their
constitutional rights. Id. at 395-96. We generally apply the same law to both Bivens
and 42 U.S.C. § 1983 cases. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
However, the Supreme Court has held that “[g]overnment officials may not be held
liable [under Bivens] for the unconstitutional conduct of their subordinates under a
theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
As an initial matter, while the parties argue on appeal as if the district court
converted the motion to dismiss into a motion for summary judgment, the fact that
the district court looked at prior court records, which were referenced by the
Secretary in his motion to dismiss, did not require the court to convert the motion.
See Bryant, 187 F.3d at 1276-78. The district court implicitly took judicial notice of
Smith’s prior action because the prior orders were public record, known within the
trial court’s jurisdiction—as it was the court that issued the orders, and can be
4 Case: 19-13189 Date Filed: 04/03/2020 Page: 5 of 7
accurately and readily determined. See Fed. R. Evid. 201. However, even if the
district court erred in not converting the motion to dismiss into a motion for summary
judgment, such an error is harmless because Smith was already on notice of her prior
case, the district court gave her 17 days to respond to the Secretary’s motion, and
she responded. Additionally, although Smith’s complaint purports to bring a cause
of action under § 1983, because Smith is suing a federal officer, it is construed as a
claim brought pursuant to Bivens.
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Case: 19-13189 Date Filed: 04/03/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13189 Non-Argument Calendar ________________________
D.C. Docket No. 3:19-cv-00161-BJD-JRK
MARGUERITE SMITH,
Plaintiff - Appellant,
versus
SECRETARY OF VETERANS AFFAIRS, JULIANNA BOOR, Director, Department of Veterans Administration St Petersburg Office: in her individual personal capacity,
Defendants - Appellees. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 3, 2020)
Before WILSON, BRANCH, and ANDERSON, Circuit Judges
PER CURIAM: Case: 19-13189 Date Filed: 04/03/2020 Page: 2 of 7
Marguerite Smith, proceeding pro se, appeals the district court’s dismissal
with prejudice of her complaint on the grounds that her claims failed to state a
claim and were barred by res judicata. The Secretary of Veterans Affairs has
moved for summary affirmance and to stay the briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
We review de novo a district court’s grant of a motion to dismiss with
prejudice. Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1037
(11th Cir. 2008). To prevent dismissal under Rule 12(b)(6), the plaintiff must allege
sufficient facts to state a claim for relief that is “plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Claims are plausible when the plaintiff
pleads facts that allow the court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pro se pleadings are held to a less-strict standard than counseled pleadings and are
2 Case: 19-13189 Date Filed: 04/03/2020 Page: 3 of 7
liberally construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
When ruling on a Rule 12(b)(6) motion to dismiss, the district court is
permitted to take judicial notice of public records without needing to convert the
motion into a motion for summary judgment, an action which would require that the
non-moving party receive notice of the movant’s submissions in order to address
their relevance. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-78 (11th
Cir. 1999). Under Federal Rule of Evidence 201, the district court may take judicial
notice of a fact that is (1) generally known within the court’s jurisdiction, and (2)
can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201.
Under the doctrine of res judicata, or claim preclusion, a claim is barred by a
prior suit if: “(1) there is a final judgment on the merits; (2) the decision was rendered
by a court of competent jurisdiction; (3) the parties . . . are identical in both suits;
and (4) the same cause of action is involved in both cases.” Griswold v. Cnty. of
Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010) (quotation omitted). Generally,
an order dismissing a complaint is not final and appealable unless the order holds
that it dismisses the entire action or that the complaint cannot be saved by
amendment. Garfield v. NDC Health Corp, 466 F.3d 1255, 1260 (11th Cir. 2006).
However, where a complaint is dismissed without prejudice and the plaintiff files an
3 Case: 19-13189 Date Filed: 04/03/2020 Page: 4 of 7
appeal instead of amending the complaint, the dismissal becomes final and
appealable and the plaintiff waives the right to later amend the complaint. Id. at
1260-61. Two cases are the same for purposes of res judicata “if a case arises out
of the same nucleus of operative facts, or is based upon the same factual predicate,
as a former action.” Griswold, 598 F.3d at 1293.
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), the Supreme Court held that injured plaintiffs could bring a cause
of action for damages against federal officers based on violations of their
constitutional rights. Id. at 395-96. We generally apply the same law to both Bivens
and 42 U.S.C. § 1983 cases. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995).
However, the Supreme Court has held that “[g]overnment officials may not be held
liable [under Bivens] for the unconstitutional conduct of their subordinates under a
theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
As an initial matter, while the parties argue on appeal as if the district court
converted the motion to dismiss into a motion for summary judgment, the fact that
the district court looked at prior court records, which were referenced by the
Secretary in his motion to dismiss, did not require the court to convert the motion.
See Bryant, 187 F.3d at 1276-78. The district court implicitly took judicial notice of
Smith’s prior action because the prior orders were public record, known within the
trial court’s jurisdiction—as it was the court that issued the orders, and can be
4 Case: 19-13189 Date Filed: 04/03/2020 Page: 5 of 7
accurately and readily determined. See Fed. R. Evid. 201. However, even if the
district court erred in not converting the motion to dismiss into a motion for summary
judgment, such an error is harmless because Smith was already on notice of her prior
case, the district court gave her 17 days to respond to the Secretary’s motion, and
she responded. Additionally, although Smith’s complaint purports to bring a cause
of action under § 1983, because Smith is suing a federal officer, it is construed as a
claim brought pursuant to Bivens.
Here, there is no substantial question that Smith’s complaint is barred by res
judicata and that her complaint failed to state a claim. See Groendyke Transp., Inc.,
406 F.3d at 1162. First, despite the fact that Smith’s prior case was dismissed
without prejudice, the case constitutes a final judgment on the merits because Smith
waived her right to further amend her complaint by seeking to appeal the dismissal,
which we summarily affirmed, and because the district court’s dismissal was for
failure to state a claim. See Garfield, 466 F.3d at 1260-61. Further, Smith’s prior
case (1) involved the same parties—namely, Smith and the Secretary, and (2)
involved the same claim because both cases arise out of the same loan guarantee and
the alleged actions of VA employees in relation to that loan guarantee. (See doc. 27
at 1-4). Thus, Smith’s present complaint is barred by res judicata. See Griswold,
598 F.3d at 1292.
5 Case: 19-13189 Date Filed: 04/03/2020 Page: 6 of 7
Additionally, there is no substantial question that Smith’s complaint failed to
state a claim. Smith purported to sue the Secretary in his individual capacity, yet the
complaint never alleged actions that the Secretary himself committed, only referring
to the actions of VA employees in general. Even construing the complaint liberally,
as suing the Secretary in his official capacity, Smith has failed to state a claim
because government officials cannot be held liable for any unconstitutional conduct
by their subordinates under Bivens. Iqbal, 566 U.S. at 676. According, summary
affirmance is appropriate. See Groendyke Transp., Inc., 406 F.3d at 1162.
Moreover, the arguments raised by Smith in her appeal are frivolous because
they are without arguable merit in law or fact. See Napier, 314 F.3d at 531. First,
her argument that the Secretary was barred from obtaining summary judgment
because he failed to timely file an answer is meritless because the Secretary timely
filed a motion to dismiss and, thus, did not have to file an answer until 14 days after
the district court resolved his pending motion. Second, her argument that the district
court denied her procedural due process rights by failing to grant her a default
judgment is meritless because the Secretary was not in default, as he had filed a
timely motion to dismiss. Her third argument that the district court failed to give her
10 days’ notice is moot because the district court gave her 17 days to respond to the
Secretary’s dispositive motion, and she responded within 6 days. Lastly, Smith’s
6 Case: 19-13189 Date Filed: 04/03/2020 Page: 7 of 7
fourth argument is meritless because district courts do have the power to reverse
orders.
Therefore, because there is no substantial question that Smith’s complaint
fails to state a claim and is barred by res judicata, and because her arguments on
appeal are frivolous, we GRANT the appellees’ motion for summary affirmance.
See Groendyke Transp., Inc., 406 F.2d at 1162. Accordingly, we DENY the
accompanying motion to stay the briefing schedule as moot.