Terrill L. Ailep v. Dalan McDonald

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 29, 2021
• Docket: 20-12464
• Status: Unpublished

Opinion

USCA11 Case: 20-12464 Date Filed: 09/29/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12464 Non-Argument Calendar ________________________

D.C. Docket No. 4:19-cv-00266-AW-MAF

TERRILL L. AILEP,

Plaintiff - Appellant,

versus

DALAN MCDONALD, Corrections Officer, LORI NORWOOD, Former AWP, JAVIER JONES, Asst Warden,

Defendants - Appellees.

________________________

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

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Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Terrill Lamar Ailep, a Florida prisoner proceeding pro se, appeals the sua

sponte dismissal of his civil rights complaint under 42 U.S.C. § 1983 as barred by

res judicata and for failure to state claim. The record shows that, in 2017, Ailep

filed a complaint in the United States District Court for the Southern District of

Florida in case number 1:17-cv-22815 (“Ailep I”), naming the following parties as

defendants: Dade Correctional Institution (“DCI”) Sergeant Dalan McDonald; Lori

Norwood, a DCI official, Lori Norwood; and DCI Assistant Warden Javier Jones.

In the Ailep I complaint, Ailep alleged that the defendants were liable for improperly

depriving him of personal property when they moved him to administrative

confinement in 2016. The district court dismissed this complaint.

In 2019, Ailep filed the present complaint in the Northern District of Florida

and once again named, as defendants, McDonald, Norwood, and Jones. In this

complaint, he challenged the same deprivation of property alleged in Ailep I. A

magistrate judge reviewed Ailep’s complaint and issued a report on March 25, 2020,

taking judicial notice of the proceedings in Ailep I and recommending that the district

court dismiss the action because it was barred by res judicata and, alternatively,

Ailep failed to state a claim. On May 12, 2020, the district court issued an order

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adopting the magistrate judge’s report and recommendation, and Ailep filed this

appeal.

On appeal, Ailep argues that dismissal was unwarranted because his claims in

the instant case were based, at least in part, on the harm caused by the deprivation

of property in the years since Ailep I was dismissed. Additionally, he argues that the

defendants intentionally deprived him of his property, that state law does not provide

him an adequate remedy, and that, as such, the deprivation of his property violated

the Eighth and Fourteenth Amendments. For ease of reference, we will address each

point in turn.

I.

We review the district court’s application of res judicata de novo. Hughes v.

Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be liberally

construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

“Nevertheless, we cannot act as de facto counsel or rewrite an otherwise deficient

pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th Cir.

2020).

In civil cases, we will generally not consider an issue that was not raised in

the district court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th

Cir. 2004). Similarly, when an appellant fails to identify a particular issue in his

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brief for this Court or fails to sufficiently argue the merits of his position on an

identified issue, he is deemed to have abandoned it. Hamilton v. Southland Christian

Sch., Inc., 680 F.3d 1316, 1318–19 (11th Cir. 2012).

Res judicata bars the parties to a prior action from relitigating the same causes

of action that were, or could have been, raised in that prior action, if that action

resulted in a final judgment on the merits. In re Piper Aircraft Corp., 244 F.3d 1289,

1296 (11th Cir. 2001). Res judicata applies when the following elements are

satisfied: (1) the prior decision was rendered by a court of competent jurisdiction;

(2) there was a final judgment on the merits; (3) both cases involve the same parties

or their privies; and (4) both cases involve the same causes of action. Id.

With respect to the final res judicata element, a case involves the same causes

of action where the claim is based on “the same nucleus of operative facts.” Id. at

1297 (quoting Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999)).

Put another way, “claims are part of the same cause of action for res judicata

purposes when they arise out of the same transaction or series of transactions.” Id.

at 1296–97. We have held that “the determination of whether the causes of action

in two proceedings are the same is governed by whether the primary right and duty

are the same.” Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992).

“The test is one of substance, not form.” Id. Thus, the res judicata doctrine applies

“not only to the precise legal theory presented in the previous litigation, but to all

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legal theories and claims arising out of the same ‘operative nucleus of fact.’” Id. at

1358–59 (quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990)).

Here, there was no dispute that the district court in the Southern District of

Florida was a “court of competent jurisdiction” when it dismissed Ailep I.

Additionally, the defendants in Ailep I and those in the instant case are identical,

satisfying the third element of res judicata. As to the second res judicata element,

Ailep did not argue before the district court that the dismissal of Ailep I was not a

final judgment nor does he make that argument on appeal. Accordingly, we need

not reach that issue. See Hamilton¸ 680 F.3d at 1318–19.

Finally, Ailep’s preserved challenge—to the conclusion that he was raising

the same claims here as in Ailep I—fails. The injuries alleged in Ailep I and this suit

all center around the same deprivation of Ailep’s property following his move to

administrative confinement and the failure of prison officials to adequately remedy

it. The two actions were thus based on the same nucleus of operative facts, and the

district court did not err in applying the doctrine of res judicata to this action.

Accordingly, we affirm in this respect.1

1 To the extent Ailep also argues that the district court should have transferred his case instead of dismissing it, we decline to address this argument, as he did not raise this argument to the district court. 5 USCA11 Case: 20-12464 Date Filed: 09/29/2021 Page: 6 of 9

II.

For the sake of thoroughness, we also address the district court’s alternative

basis for dismissing the action, i.e When a district court dismisses an action sua

sponte under 28 U.S.C. § 1915(e)(2)(B)(ii), the standard of review is the same as if

the district court had dismissed it in response to a motion under Federal Rule of Civil

Procedure 12(b)(6). Henley v. Payne, 945 F.3d 1320, 1331 (11th Cir. 2019). Thus,

our review of the dismissal is de novo, and we treat all factual allegations in the

operative complaint as true while taking all reasonable inferences in the plaintiff’s

favor. Id. at 1326. To survive scrutiny under Rule 12(b)(6) or § 1915(e)(2)(B)(ii),

a complaint must contain sufficient factual matter which, accepted as true, states a

claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

The Supreme Court has held that the Due Process Clause is not implicated

when a state official’s negligent act causes an unintended loss of life, liberty, or

property. Daniels v. Williams, 474 U.S. 327, 328 (1986). As for intentional

deprivations of property by state officials, the Supreme Court has held that no

Fourteenth Amendment violation occurs where a “meaningful postdeprivation

remedy” is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). “Hudson made

clear that as long as some adequate post deprivation remedy is available, no due

process violation has occurred.” Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir.

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1991). For example, a civil cause of action for the wrongful taking of property by

agents of the state is an adequate remedy for an intentional deprivation of property.

Id. And Florida state tort law provides such a remedy for unauthorized seizures of

personal property by state officers. See Fla. Stat. § 768.28 (waiving sovereign

immunity for “loss of property . . . caused by the negligent or wrongful act or

omission of any employee” of a state agency while acting within the scope of

employment); see also Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009).

“To state an Eighth Amendment claim under § 1983, a prisoner must allege

facts to satisfy both an objective and subjective inquiry regarding a prison official's

conduct.” Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010). “Under the

objective component, a prisoner must allege a prison condition that is so extreme

that it poses an unreasonable risk of serious damage to the prisoner’s health or

safety.” Id. Generally, “prison conditions rise to an Eighth Amendment violation

only if they ‘involve the wanton and unnecessary infliction of pain.’” Chandler v.

Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quoting Rhodes v. Chapman, 452

U.S. 337, 347 (1981)). As to the subjective component, “the prisoner must allege

that the prison official, at a minimum, acted with a state of mind that constituted

deliberate indifference.” Richardson, 598 F.3d at 737. “[D]eliberate indifference

has three components: (1) subjective knowledge of a risk of serious harm; (2)

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disregard of that risk; (3) by conduct that is more than mere negligence.” Id. (quoting

Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003)).

Although the district court construed Ailep’s complaint as potentially alleging

that the deprivation of his property by the defendants was intentional, he did not

allege that the deprivation was done with the intent of causing him physical pain or

putting his health at risk, or that it actually caused him injury. We therefore conclude

that the district court did not err in determining that Ailep failed to state a claim

under the Eighth Amendment.

As to Ailep’s argument concerning his Fourteenth Amendment claim, this

argument confuses the availability of a meaningful post deprivation remedy for an

intentional deprivation of property with the provision of that remedy in his case.

Because Florida law provides for a civil action against the state and its agencies for

both intentional and negligent deprivations of property, and because we have held

that such a cause of action is sufficient, see Case, 555 F.3d at 1331, Ailep cannot

state a claim under the Fourteenth Amendment for intentional deprivation of

property. We therefore conclude that the district court did not err in determining

that Ailep failed to state a claim under the Fourteenth Amendment for intentional

deprivation of property.

Accordingly, for the reasons stated, we affirm the district court’s dismissal

of Ailep’s complaint.

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AFFIRMED.