USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 20-14719 & 21-10132 Non-Argument Calendar ________________________
D.C. Docket No. 1:20-cv-03603-LMM
ZORRI N. RUSH,
Plaintiff-Appellant,
versus
CARMAX AUTO SUPERSTORES, INC., AMERICAN CREDIT ACCEPTANCE, LLC, PROGRESSIVE INSURANCE UNDERWRITERS BY MOUNTAIN LAUREL ASSURANCE CO., ALLIED SOLUTIONS TOWING,
Defendants-Appellees.
Appeals from the United States District Court for the Northern District of Georgia ________________________
(August 5, 2021) USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 2 of 7
Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Zorri Rush, proceeding pro se, appeals the district court’s dismissal of his 9
U.S.C. § 4 petition for frivolity and failure to state a claim under 28 U.S.C.
§ 1915(e) after finding that it lacked subject-matter jurisdiction over his case. He
also appeals the district court’s denial of his subsequent motion for a preliminary
injunction and temporary restraining order (“TRO”) on the basis that he could not
show a likelihood of success on the merits following the dismissal of his case.
On appeal, he does not argue that the district court’s dismissal for frivolity
and failure to state a claim—finding that it lacked subject-matter jurisdiction over
his case—or denial of his motion for injunctive relief for failure to show a
likelihood of success was improper. Instead, he asserts unrelated claims of willful
neglect by the district court judge in performing her judicial duties relating to the
parties’ arguments and pleadings, without further detail, and new and unrelated
allegations under the Federal Claims Act concerning fraudulent and discriminatory
banking practices.
I.
We review dismissals for frivolity for abuse of discretion and for failure to
state a claim de novo, pursuant to § 1915(e)(2)(B)(i)-(ii). Bilal v. Driver, 251 F.3d
1346, 1348-49 (11th Cir. 2001). We also review de novo a district court’s
2 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 3 of 7
dismissal for lack of subject-matter jurisdiction. Center v. Sec’y, Dep’t of
Homeland Sec., 895 F.3d 1295, 1299 (11th Cir. 2018). The party asserting the
claim bears the burden of establishing federal subject matter jurisdiction. Williams
v. Poarch Band of Creek Indians, 839 F.3d 1312, 1314 (11th Cir. 2016).
Although pro se pleadings are liberally construed, issues not raised before
the district court are deemed waived. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). And issues not briefed by a pro se litigant are
deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
Passing references to an issue do not suffice. Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Both counseled and pro se litigants are
required to conform to procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007). Further, the leniency given to pro se litigants “does not give a
court license to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd.,
760 F.3d 1165, 1168-69 (11th Cir. 2014).
A district court must have jurisdiction under at least one of the three types of
subject-matter jurisdiction: (1) jurisdiction pursuant to a specific statutory grant;
(2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). PTA-FLA, Inc. v. ZTE USA, Inc., 844
F.3d 1299, 1305 (11th Cir. 2016). District courts have original jurisdiction of all
3 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 4 of 7
civil actions arising under the Constitution, laws, or treaties of the United States.
28 U.S.C. § 1331. A claim arises under federal law when the face of the complaint
presents a federal question. Hill v. BellSouth Telecomm., Inc., 364 F.3d 1308,
1314 (11th Cir. 2004). District courts also have subject-matter jurisdiction over
civil actions between citizens of different states where the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332(a)(1). For such jurisdiction to exist under
§ 1332(a)(1), there must be complete diversity of citizenship between all plaintiffs
and all defendants. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). The party
invoking diversity jurisdiction must allege the citizenships of the parties at the time
suit is filed in federal court. Travaglio v. Am. Express Co., 735 F.3d 1266, 1268
(11th Cir. 2013). Notably, 9 U.S.C. § 4 does not itself supply a basis for federal
jurisdiction. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1252 (11th Cir.
2011).
Further, a district court shall dismiss a case brought IFP at any time if the
court determines that the action is frivolous or malicious or fails to state a claim on
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A claim is
frivolous if it is without arguable merit either in law or fact. Bilal, 251 F.3d at
1349; see also Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (holding that a
case is frivolous under the IFP statute when it appears that the plaintiff has little or
no chance of success). Moreover, § 1915 “accords judges not only the authority to
4 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 5 of 7
dismiss a claim based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s factual allegations and dismiss
those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at
1349 (quotation marks omitted).
A pleading fails to state a claim when it does not include “enough factual
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USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 20-14719 & 21-10132 Non-Argument Calendar ________________________
D.C. Docket No. 1:20-cv-03603-LMM
ZORRI N. RUSH,
Plaintiff-Appellant,
versus
CARMAX AUTO SUPERSTORES, INC., AMERICAN CREDIT ACCEPTANCE, LLC, PROGRESSIVE INSURANCE UNDERWRITERS BY MOUNTAIN LAUREL ASSURANCE CO., ALLIED SOLUTIONS TOWING,
Defendants-Appellees.
Appeals from the United States District Court for the Northern District of Georgia ________________________
(August 5, 2021) USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 2 of 7
Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Zorri Rush, proceeding pro se, appeals the district court’s dismissal of his 9
U.S.C. § 4 petition for frivolity and failure to state a claim under 28 U.S.C.
§ 1915(e) after finding that it lacked subject-matter jurisdiction over his case. He
also appeals the district court’s denial of his subsequent motion for a preliminary
injunction and temporary restraining order (“TRO”) on the basis that he could not
show a likelihood of success on the merits following the dismissal of his case.
On appeal, he does not argue that the district court’s dismissal for frivolity
and failure to state a claim—finding that it lacked subject-matter jurisdiction over
his case—or denial of his motion for injunctive relief for failure to show a
likelihood of success was improper. Instead, he asserts unrelated claims of willful
neglect by the district court judge in performing her judicial duties relating to the
parties’ arguments and pleadings, without further detail, and new and unrelated
allegations under the Federal Claims Act concerning fraudulent and discriminatory
banking practices.
I.
We review dismissals for frivolity for abuse of discretion and for failure to
state a claim de novo, pursuant to § 1915(e)(2)(B)(i)-(ii). Bilal v. Driver, 251 F.3d
1346, 1348-49 (11th Cir. 2001). We also review de novo a district court’s
2 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 3 of 7
dismissal for lack of subject-matter jurisdiction. Center v. Sec’y, Dep’t of
Homeland Sec., 895 F.3d 1295, 1299 (11th Cir. 2018). The party asserting the
claim bears the burden of establishing federal subject matter jurisdiction. Williams
v. Poarch Band of Creek Indians, 839 F.3d 1312, 1314 (11th Cir. 2016).
Although pro se pleadings are liberally construed, issues not raised before
the district court are deemed waived. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). And issues not briefed by a pro se litigant are
deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
Passing references to an issue do not suffice. Greenbriar, Ltd. v. City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Both counseled and pro se litigants are
required to conform to procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007). Further, the leniency given to pro se litigants “does not give a
court license to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd.,
760 F.3d 1165, 1168-69 (11th Cir. 2014).
A district court must have jurisdiction under at least one of the three types of
subject-matter jurisdiction: (1) jurisdiction pursuant to a specific statutory grant;
(2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a). PTA-FLA, Inc. v. ZTE USA, Inc., 844
F.3d 1299, 1305 (11th Cir. 2016). District courts have original jurisdiction of all
3 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 4 of 7
civil actions arising under the Constitution, laws, or treaties of the United States.
28 U.S.C. § 1331. A claim arises under federal law when the face of the complaint
presents a federal question. Hill v. BellSouth Telecomm., Inc., 364 F.3d 1308,
1314 (11th Cir. 2004). District courts also have subject-matter jurisdiction over
civil actions between citizens of different states where the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332(a)(1). For such jurisdiction to exist under
§ 1332(a)(1), there must be complete diversity of citizenship between all plaintiffs
and all defendants. Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). The party
invoking diversity jurisdiction must allege the citizenships of the parties at the time
suit is filed in federal court. Travaglio v. Am. Express Co., 735 F.3d 1266, 1268
(11th Cir. 2013). Notably, 9 U.S.C. § 4 does not itself supply a basis for federal
jurisdiction. See Cmty. State Bank v. Strong, 651 F.3d 1241, 1252 (11th Cir.
2011).
Further, a district court shall dismiss a case brought IFP at any time if the
court determines that the action is frivolous or malicious or fails to state a claim on
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A claim is
frivolous if it is without arguable merit either in law or fact. Bilal, 251 F.3d at
1349; see also Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (holding that a
case is frivolous under the IFP statute when it appears that the plaintiff has little or
no chance of success). Moreover, § 1915 “accords judges not only the authority to
4 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 5 of 7
dismiss a claim based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s factual allegations and dismiss
those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at
1349 (quotation marks omitted).
A pleading fails to state a claim when it does not include “enough factual
matter (taken as true)” to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555–56 (2007). Although a complaint is not required to contain detailed
factual allegations, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions.” Id. at 555
(quotation marks omitted). Naked assertions devoid of further factual
enhancement also will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The complaint must contain enough facts to make a claim for relief plausible on its
face; that is, the factual content must allow the court to “draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Further,
although pro se pleadings are liberally construed, they still must suggest some
factual basis for a claim. Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107 (11th
Cir. 2015).
Here, because Rush presented no argument challenging the dismissal of his
§ 4 petition for frivolity and failure to state a claim or mentioning subject-matter
5 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 6 of 7
jurisdiction, this issue is abandoned on appeal. Additionally, even if the issue was
not abandoned, the district court properly dismissed his petition because he only
made vague and conclusory allegations with little or no chance of success, which
was frivolous. Further, because he failed to allege facts sufficient to support a
reasonable inference that the defendants were liable for any alleged misconduct
and fell short of establishing a federal jurisdictional basis for any of his claims, he
failed to state a claim.
II.
We review a district court’s denial of a motion for a temporary restraining
order or preliminary injunction only for abuse of discretion. Long v. Sec’y, Dep’t
of Corr., 924 F.3d 1171, 1175 (11th Cir. 2019).
An issue is moot “when it no longer presents a live controversy with respect
to which the court can give meaningful relief.” Friends of Everglades v. S. Fla.
Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009). A federal court cannot
decide issues that have become moot, and deciding such issues is tantamount to
issuing an advisory opinion that is beyond its Article III authority. Id. A decision
that a complaint fails to state a claim for relief moots any issues regarding a stay or
a preliminary injunction. See Gissendaner v. Comm’r, Ga. Dep’t of Corr., 794
F.3d 1327, 1330 n.3 (11th Cir. 2015).
6 USCA11 Case: 20-14719 Date Filed: 08/05/2021 Page: 7 of 7
Here, because Rush failed to present an argument concerning the district
court’s denial of his motion for preliminary injunction and TRO for failure to show
a likelihood of success on the merits, this issue is abandoned. Further, even if this
issue was not abandoned, the district court did not abuse its discretion in denying
the motion because the court properly dismissed Rush’s case for failure to state a
viable claim, and, therefore, the motion for preliminary injunction was moot, and
due to be denied. Accordingly, we affirm.
AFFIRMED.1
1 Rush’s Motion of Objection to Clerical Consolidation is DENIED. 7