725 Fed.Appx. 789 (11th Cir. 2018), 17-13636, Gilbert v. Daniels

Docket Nº:17-13636
Citation:725 Fed.Appx. 789
Opinion Judge:PER CURIAM:
Party Name:Elisha GILBERT, Jr., Plaintiff-Appellant, v. Frederick L. DANIELS, Jr., Chairman, DeKalb County, Barbara Babbit Kaufman, Vice Chairman, Fulton County, Harold Buckley, Sr., Treasurer, DeKalb County, Juanita Jones Abernathy, Secretary, City of Atlanta, Robert L. Ashe, III, City of Atlanta, et al., Defendants-Appellees.
Attorney:Elisha Gilbert, Jr., Pro Se Vincent D. Hyman, Marta Law Department, Atlanta, GA, for Defendants-Appellees Frederick L. Daniels, Jr., Barbara Babbit Kaufman, Harold Buckley, Sr., Juanita Jones Abernathy, Robert L. Ashe, III Dominique Annida Martinez, Laura L. Moore, Fulton County Attorney’s Office...
Judge Panel:Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.
Case Date:February 14, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 789

725 Fed.Appx. 789 (11th Cir. 2018)

Elisha GILBERT, Jr., Plaintiff-Appellant,

v.

Frederick L. DANIELS, Jr., Chairman, DeKalb County, Barbara Babbit Kaufman, Vice Chairman, Fulton County, Harold Buckley, Sr., Treasurer, DeKalb County, Juanita Jones Abernathy, Secretary, City of Atlanta, Robert L. Ashe, III, City of Atlanta, et al., Defendants-Appellees.

No. 17-13636

United States Court of Appeals, Eleventh Circuit

February 14, 2018

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 11th Cir. Rule 36-2.)

Page 790

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:14-cv-01623-TWT

Elisha Gilbert, Jr., Pro Se

Vincent D. Hyman, Marta Law Department, Atlanta, GA, for Defendants-Appellees Frederick L. Daniels, Jr., Barbara Babbit Kaufman, Harold Buckley, Sr., Juanita Jones Abernathy, Robert L. Ashe, III

Dominique Annida Martinez, Laura L. Moore, Fulton County Attorney’s Office, Atlanta, GA, for Defendant-Appellee John H. Eaves

Terri N. Gordon, Shaheem Malik Williams, DeKalb County Law Department, Decatur, GA, for Defendants-Appellees Alvin T. Wong, Wayne M. Purdom, Sherry Boston, Lisa E. Bobb, Burrell Ellis, Jeff Rader, Melanie F. Wilson, L. Jackson, William O’Brien

Valorri Jones, Camille Small-Simon, Vera June Starks, City of Atlanta Law Department, Atlanta, GA, for Defendants-Appellees Kasim Reed, Elaine L Carlisle, Patrick Labat, Raines F. Carter, Darryl Ferguson

Before TJOFLAT, ROSENBAUM, and NEWSOM, Circuit Judges.

OPINION

PER CURIAM:

Page 791

Elisha Gilbert, Jr., filed a pro se lawsuit against thirty or so defendants arising out of his July 2012 arrest at the Five Points MARTA Station in Atlanta, Georgia. The defendants filed motions to dismiss on various grounds, and the district court dismissed the action in a brief order. On appeal, we found that Gilbert’s complaint was a "shotgun pleading" that did not give fair notice of its claims, but we concluded that the court did not adequately explain its reasons for dismissal and that Gilbert was probably entitled to at least one chance to amend his complaint. Gilbert v. Daniels, 624 Fed.Appx. 716 (11th Cir. 2015). Accordingly, we "vacate[d] the dismissal of Gilbert’s complaint and we remand[ed] for the district court to develop the record and determine, in the first instance, whether Gilbert should be instructed to replead his claims or whether amendment would be futile." Id. at 718.

After the case was returned on remand, the district court, consistent with our mandate, granted the defendants’ motions to dismiss on the ground that the complaint was a shotgun pleading. The court then ordered Gilbert to file within 28 days an amended complaint that complied with the Federal Rules of Civil Procedure. That order was entered on November 1, 2016. A copy of the district court’s order was mailed to Gilbert, but it was returned to the clerk because no one by his name resided at the address on file for him.

Because Gilbert did not respond within 28 days, the district court dismissed Gilbert’s lawsuit on December 14, 2016. A copy of the district court’s dismissal order was mailed to the address on file for Gilbert, but, again, it was returned to the clerk as undeliverable.

Over six months later, on June 10, 2017, Gilbert filed a motion for relief from the judgment under Rules 60(a) and (b)(6) of the Federal Rules of Civil Procedure.1 In that motion, Gilbert stated that he did not receive a copy of the court’s order giving him 28 days to file an amended complaint. He explained that he was arrested on September 4, 2016, about two months before the order issued, and held in custody at the DeKalb County jail until March 30, 2017. He claimed that he made the court aware of his mailing address at the jail through his filings in a separate case, but that the court failed to send him notice of the order and judgment. He asked the court to correct the error and allow him to file an amended complaint.

The district court denied Gilbert’s Rule 60 motion. The court noted that "[a]t no time did the Defendant notify the Court that he was in jail or that his mailing address had changed." Finding that Gilbert’s failure to receive the court’s prior order, and his failure to comply with that order, was "entirely" his own fault, the court concluded that he was not entitled to relief from the judgment. Gilbert timely appealed the denial of his post-judgment motion.

On appeal, Gilbert essentially argues that the district court...

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