USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12562 Non-Argument Calendar ________________________
D.C. Docket No. 1:20-cv-22559-UU
ROCHELLE Y. DRIESSEN,
Plaintiff - Appellant,
versus
UNIVERSITY OF MIAMI SCHOOL OF LAW CHILDREN & YOUTH LAW CLINIC, STATE OF FLORIDA, for the actions of its former employees 11th Judicial Circuit Probate Judge Maria Korvick, and 11th Judicial Circuit Magistrate Judge Lewis Kimler,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(November 16, 2020) USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 2 of 7
Before JILL PRYOR, LUCK and BLACK, Circuit Judges.
PER CURIAM:
Rochelle Driessen, proceeding pro se, appeals the district court’s dismissal
of her 42 U.S.C. § 1983 complaint and the denial of her motions for relief from
judgment under Federal Rule of Civil Procedure 60(b) and 60(d)(3).1 Driessen
alleged the University of Miami School of Law Children & Youth Law Clinic (the
University) and the State of Florida (the State)—through the actions of two
judges—violated her due process rights in a guardianship proceeding involving her
daughter. The court dismissed the action as frivolous because the University was
not a state actor and based on absolute judicial immunity.
Driessen presents three arguments on appeal. First, she argues the district
court erred in dismissing her claims against the University because she sufficiently
pleaded the University was a state actor. Second, she argues the court erred in
denying her Rule 60(b) motion, with respect to her claims against the State,
because the State waived sovereign immunity. Third, she argues the court erred in
denying her Rule 60(b)(3) motion because fraud resulted when the court dismissed
1 We liberally construe Driessen’s notice of appeal as challenging the dismissal of her complaint, even though the dismissal order is not designated in her notice of appeal, because her intent to appeal the dismissal is clear. See Nichols v. Ala. State Bar, 815 F.3d 726, 730-31 (11th Cir. 2016) (providing “an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the overriding intent was effectively to appeal” and noting we may look to a party’s brief to assess intent to appeal) (quotation marks omitted). 2 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 3 of 7
her claims as frivolous and listed the Emily C. Moises Day Training Center (the
Training Center) as a defendant. After review, we affirm.
I. DISCUSSION
A. Dismissal of Claims Against the University
Driessen alleged the University—which represented her daughter’s
grandfather, Richard Driessen, in the guardianship proceeding—violated her due
process rights by failing to provide her with notice of a hearing, resulting in
Richard Driessen serving as her daughter’s guardian advocate. On appeal, she
argues the district court erred in dismissing her § 1983 claims against the
University as frivolous because she sufficiently pleaded the University was a state
actor under the nexus/joint action test.
Although a plaintiff in a § 1983 suit must show the defendant is a state actor,
a private party may be considered a state actor in “rare circumstances,” when one
of three tests is met: the state compulsion test, the public function test, or the
nexus/joint action test. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)
(quotation marks omitted). Under the nexus/joint action test, a private party may
be viewed as a state actor where “the State had so far insinuated itself into a
position of interdependence” with the private party that it was a joint participant in
the action. Id. (quotation marks omitted). To satisfy this test, the private party
must be “intertwined in a symbiotic relationship” with the government, which
3 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 4 of 7
involves the “specific conduct of which the plaintiff complains.” Id. (quotation
marks and citations omitted).
The district court did not abuse its discretion in dismissing Driessen’s
§ 1983 claims against the University as frivolous because the University is not a
state actor and Driessen failed to show any of the “rare circumstances” allowing
claims against a private actor to proceed. See 28 U.S.C. § 1915(e)(2)(B)(i)
(providing a court shall dismiss an action brought by a party who seeks to proceed
in forma pauperis if the action is frivolous); Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001) (reviewing the dismissal of a complaint as frivolous for an abuse
of discretion). Driessen did not allege sufficient facts to establish the State
insinuated itself into a position of interdependence with the University, or that the
University was in a symbiotic relationship with the State with respect to the alleged
misconduct, such that the nexus/joint action test was met, and Driessen does not
contend either of the other two tests are applicable. See Rayburn, 241 F.3d at
1347. Rather, she merely alleged the University failed to provide her with notice
of a hearing and the hearing continued without further inquiry about whether
notice was provided. Driessen therefore failed to show the University was subject
to suit under § 1983, and the district court did not abuse its discretion in dismissing
her claims against the University as frivolous. See Bilal, 251 F.3d at 1349 (“A
claim is frivolous if it is without arguable merit either in law or fact.”).
4 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 5 of 7
B. Denial of Rule 60(b) Motion as to Claims Against the State
Driessen’s claims against the State were based on the actions of two state
court judges in the guardianship proceeding and their failure to ensure she was
provided notice of the hearing or terminate the guardianship. Following the
dismissal of her complaint, Driessen moved for relief from judgment pursuant to
Rule 60(a) and 60(b), arguing the district court erred in listing the Training Center
as a defendant and contending she was suing the State as a defendant, not
individual judges. The district court granted her motion for Rule 60(a) relief,
removing the Training Center as a defendant from the case caption, but denied her
Rule 60(b) motion, concluding any claims against the State were barred by
Eleventh Amendment sovereign immunity. Driessen now argues the district court
erred in finding the State was immune from suit under the Eleventh Amendment,
contending sovereign immunity had been waived.
The district court did not abuse its discretion in denying Driessen’s Rule
60(b) motion for relief from judgment. See Maradiaga v.
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USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-12562 Non-Argument Calendar ________________________
D.C. Docket No. 1:20-cv-22559-UU
ROCHELLE Y. DRIESSEN,
Plaintiff - Appellant,
versus
UNIVERSITY OF MIAMI SCHOOL OF LAW CHILDREN & YOUTH LAW CLINIC, STATE OF FLORIDA, for the actions of its former employees 11th Judicial Circuit Probate Judge Maria Korvick, and 11th Judicial Circuit Magistrate Judge Lewis Kimler,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(November 16, 2020) USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 2 of 7
Before JILL PRYOR, LUCK and BLACK, Circuit Judges.
PER CURIAM:
Rochelle Driessen, proceeding pro se, appeals the district court’s dismissal
of her 42 U.S.C. § 1983 complaint and the denial of her motions for relief from
judgment under Federal Rule of Civil Procedure 60(b) and 60(d)(3).1 Driessen
alleged the University of Miami School of Law Children & Youth Law Clinic (the
University) and the State of Florida (the State)—through the actions of two
judges—violated her due process rights in a guardianship proceeding involving her
daughter. The court dismissed the action as frivolous because the University was
not a state actor and based on absolute judicial immunity.
Driessen presents three arguments on appeal. First, she argues the district
court erred in dismissing her claims against the University because she sufficiently
pleaded the University was a state actor. Second, she argues the court erred in
denying her Rule 60(b) motion, with respect to her claims against the State,
because the State waived sovereign immunity. Third, she argues the court erred in
denying her Rule 60(b)(3) motion because fraud resulted when the court dismissed
1 We liberally construe Driessen’s notice of appeal as challenging the dismissal of her complaint, even though the dismissal order is not designated in her notice of appeal, because her intent to appeal the dismissal is clear. See Nichols v. Ala. State Bar, 815 F.3d 726, 730-31 (11th Cir. 2016) (providing “an appeal is not lost if a mistake is made in designating the judgment appealed from where it is clear that the overriding intent was effectively to appeal” and noting we may look to a party’s brief to assess intent to appeal) (quotation marks omitted). 2 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 3 of 7
her claims as frivolous and listed the Emily C. Moises Day Training Center (the
Training Center) as a defendant. After review, we affirm.
I. DISCUSSION
A. Dismissal of Claims Against the University
Driessen alleged the University—which represented her daughter’s
grandfather, Richard Driessen, in the guardianship proceeding—violated her due
process rights by failing to provide her with notice of a hearing, resulting in
Richard Driessen serving as her daughter’s guardian advocate. On appeal, she
argues the district court erred in dismissing her § 1983 claims against the
University as frivolous because she sufficiently pleaded the University was a state
actor under the nexus/joint action test.
Although a plaintiff in a § 1983 suit must show the defendant is a state actor,
a private party may be considered a state actor in “rare circumstances,” when one
of three tests is met: the state compulsion test, the public function test, or the
nexus/joint action test. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)
(quotation marks omitted). Under the nexus/joint action test, a private party may
be viewed as a state actor where “the State had so far insinuated itself into a
position of interdependence” with the private party that it was a joint participant in
the action. Id. (quotation marks omitted). To satisfy this test, the private party
must be “intertwined in a symbiotic relationship” with the government, which
3 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 4 of 7
involves the “specific conduct of which the plaintiff complains.” Id. (quotation
marks and citations omitted).
The district court did not abuse its discretion in dismissing Driessen’s
§ 1983 claims against the University as frivolous because the University is not a
state actor and Driessen failed to show any of the “rare circumstances” allowing
claims against a private actor to proceed. See 28 U.S.C. § 1915(e)(2)(B)(i)
(providing a court shall dismiss an action brought by a party who seeks to proceed
in forma pauperis if the action is frivolous); Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001) (reviewing the dismissal of a complaint as frivolous for an abuse
of discretion). Driessen did not allege sufficient facts to establish the State
insinuated itself into a position of interdependence with the University, or that the
University was in a symbiotic relationship with the State with respect to the alleged
misconduct, such that the nexus/joint action test was met, and Driessen does not
contend either of the other two tests are applicable. See Rayburn, 241 F.3d at
1347. Rather, she merely alleged the University failed to provide her with notice
of a hearing and the hearing continued without further inquiry about whether
notice was provided. Driessen therefore failed to show the University was subject
to suit under § 1983, and the district court did not abuse its discretion in dismissing
her claims against the University as frivolous. See Bilal, 251 F.3d at 1349 (“A
claim is frivolous if it is without arguable merit either in law or fact.”).
4 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 5 of 7
B. Denial of Rule 60(b) Motion as to Claims Against the State
Driessen’s claims against the State were based on the actions of two state
court judges in the guardianship proceeding and their failure to ensure she was
provided notice of the hearing or terminate the guardianship. Following the
dismissal of her complaint, Driessen moved for relief from judgment pursuant to
Rule 60(a) and 60(b), arguing the district court erred in listing the Training Center
as a defendant and contending she was suing the State as a defendant, not
individual judges. The district court granted her motion for Rule 60(a) relief,
removing the Training Center as a defendant from the case caption, but denied her
Rule 60(b) motion, concluding any claims against the State were barred by
Eleventh Amendment sovereign immunity. Driessen now argues the district court
erred in finding the State was immune from suit under the Eleventh Amendment,
contending sovereign immunity had been waived.
The district court did not abuse its discretion in denying Driessen’s Rule
60(b) motion for relief from judgment. See Maradiaga v. United States, 679 F.3d
1286, 1291 (11th Cir. 2012) (reviewing denial of a Rule 60(b) motion for an abuse
of discretion). Congress has not abrogated Eleventh Amendment immunity in
§ 1983 cases, and the State of Florida has not waived sovereign immunity or
consented to suit with respect to such actions. See Cross v. State of Ala., State
Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1502 (11th Cir.
5 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 6 of 7
1995); Hill v. Dep’t of Corr., State of Fla., 513 So. 2d 129, 133 (Fla. 1987). The
district court therefore did not abuse its discretion in concluding Driessen’s claims
against the State were barred by the Eleventh Amendment. See Nichols v. Ala.
State Bar, 815 F.3d 726, 731 (11th Cir. 2016) (“Eleventh Amendment immunity
bars suits by private individuals in federal court against a state unless the state has
consented to be sued or has waived its immunity or Congress has abrogated the
states’ immunity.”). Additionally, to the extent Driessen asserts any claim against
the state court judges for their actions in the guardianship proceeding, they are
entitled to absolute judicial immunity. See Bolin v. Story, 225 F.3d 1234, 1239
(11th Cir. 2000) (stating judges are immune from suits for damages for actions
taken in their judicial capacity unless they acted in the “clear absence of all
jurisdiction”).
C. Denial of Rule 60(d)(3) Motion
After the district court denied her motion for Rule 60(b) relief, Driessen
moved for relief under Rule 60(d)(3), contending fraud occurred when the court
dismissed her claims as frivolous and included the Training Center as a defendant.
Driessen argues the denial of her motion was in error, advancing the same
arguments on appeal and contending her claims instead should have been
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) or (iii).
6 USCA11 Case: 20-12562 Date Filed: 11/16/2020 Page: 7 of 7
The district court did not abuse its discretion in denying Driessen’s Rule
60(d)(3) motion. The court’s adverse ruling is not the kind of egregious
misconduct that rises to the level of fraud on the court, nor was its decision to
dismiss Driessen’s complaint on one ground rather than another. See Cox Nuclear
Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007) (reviewing
denial of comparable Rule 60(b)(3) motion for an abuse of discretion); Rozier v.
Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (indicating only the most
egregious misconduct will constitute a fraud upon the court). Further, in granting
Driessen’s Rule 60(a) motion, the district court corrected the case caption to
eliminate the Training Center as a defendant. Any claim the inclusion of this
defendant amounted to fraud is meritless.
II. CONCLUSION
For the reasons above, the district court did not abuse its discretion in
dismissing Driessen’s complaint as frivolous or denying her postjudgment
motions for relief under Rule 60(b) and 60(d)(3). Accordingly, we affirm.
AFFIRMED.