Shaddy Whittaker v. Arnaldo Sanchez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 24, 2021
• Docket: 19-13486
• Status: Unpublished

Opinion

USCA11 Case: 19-13486 Date Filed: 05/24/2021 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13486 Non-Argument Calendar ________________________

D.C. Docket No. 5:16-cv-00596-PGB-PRL

SHADDY WHITTAKER,

Plaintiff-Appellant,

versus

ARNALDO SANCHEZ, D.O., FCC Coleman, EDGAR MORALES, MLP, FCC Coleman, D. IVEY, Nurse, FCC Coleman, LARRY R. JOHNSON, Medical Doctor, Leesburg Regional Medical Center, UNITED STATES OF AMERICA,

Defendants-Appellees.

________________________

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

(May 24, 2021) USCA11 Case: 19-13486 Date Filed: 05/24/2021 Page: 2 of 4

Before NEWSOM, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM:

Shaddy Whittaker, proceeding pro se, appeals the district court’s grant of

summary judgment to Larry Johnson, finding that Johnson was not a federal actor

for purposes of Whittaker’s claim alleging a violation of his federal constitutional

rights. Johnson 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).

Pro se pleadings are held to a less stringent standard than counseled pleadings

and, therefore, are liberally construed. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998). Nevertheless, pro se litigants are still required to conform to

procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). The

district court is not required to “rewrite an otherwise deficient pleading in order to

sustain an action.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir.

2014).

2 USCA11 Case: 19-13486 Date Filed: 05/24/2021 Page: 3 of 4

“When an appellant fails to challenge properly on appeal one of the grounds

on which the district court based its judgment, he is deemed to have abandoned any

challenge of that ground, and it follows that the judgment is due to be affirmed.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). For an

argument to be sufficiently briefed on appeal, the argument must include the

appellant’s “contentions and the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A).

Plaintiffs pursuing a claim for alleged constitutional violations under 42

U.S.C. § 1983 or under Bivens “must show that he or she was deprived of a federal

right by a person acting under color of [federal] law.” Griffin v. City of Opa-Locka,

261 F.3d 1295, 1303 (11th Cir. 2001). Here, there is no substantial

question that Whittaker has abandoned any challenge to the district court’s grant of

summary judgment to Johnson by failing to raise any argument to that effect on

appeal. See Groendyke Transp., Inc., 406 F.3d at 1162. Even liberally construed,

Whittaker reiterates only the merits of his claims, in addition to discussing facts that

are outside the scope of those claims, without even a mention of the district court’s

order granting summary judgment. See Tannenbaum, 148 F.3d at 1263; see also Fed.

R. App. P. 28(a)(8)(A).

Further, even considering the merits of Whittaker’s appeal, he failed to

demonstrate any evidence showing that Johnson was acting under color of federal

3 USCA11 Case: 19-13486 Date Filed: 05/24/2021 Page: 4 of 4

law. See Griffin, 261 F.3d at 1303. Whittaker did not allege any evidence to show a

relationship between Johnson and the federal government, especially when

countered by Johnson’s affidavit alleging that he was just an emergency medicine

doctor working at Leesburg Regional Medical Center who happened to treat

Whittaker when he was taken to the emergency room.

Accordingly, there is no substantial question that Whittaker abandoned any

challenge to the district court’s grant of summary judgment and that, even

considering the merits, the district court properly granted summary judgment.

Therefore, Johnson’s motion for summary affirmance is GRANTED. The

district court’s February 22, 2018 order, as it relates to Johnson only, is AFFIRMED.

The appeal shall continue with respect to the remaining appellees. The judgment as

it relates to Johnson shall be STAYED until it is issued with any judgment with

respect to the remaining appellees.