Hollis v. W. Acad. Charter, Inc., No. 18-10917

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPER CURIAM
Decision Date08 August 2019
Docket NumberNo. 18-10917

ANDREW DOUGLAS HOLLIS, Plaintiff-Appellant,

No. 18-10917


August 8, 2019


Non-Argument Calendar

D.C. Docket No. 9:16-cv-80819-BB

Appeal from the United States District Court for the Southern District of Florida

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.


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Andrew Hollis, proceeding pro se, appeals the dismissal with prejudice of his amended and second amended complaints, which alleged various violations of his constitutional rights. First, as to his amended complaint, he argues that the district court erred (1) in construing his retaliation claims as being brought under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), ("Title VII") and dismissing them for failure to exhaust his administrative remedies and (2) in dismissing his due process defamation claim as untimely. He asserts that the statute of limitations for his defamation claim accrued when he realized that he had an available legal remedy.

Second, as to his second amended complaint, Hollis argues that the district court erred in dismissing his § 1983 claims for failure to state a claim, should have considered the allegations in his prior complaints, and should have provided him with an opportunity to amend before dismissing the complaint with prejudice. Specifically, as to the substance of his § 1983 claims, he contends that Defendants violated his right to privacy under the Fourth or Fourteenth Amendments by disseminating the last four digits of his Social Security Number ("SSN") to his coworkers and asserts that the district court improperly applied the "third-party doctrine." He cites to § 7 of the Privacy Act of 1974 and State ex rel. Beacon Journal Publ'g Co. v. Akron, 640 N.E.2d 164 (Ohio 1994), for the proposition that

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he had a reasonable expectation of privacy in his SSN. Next, Hollis contends that Defendants violated his rights under the Equal Protection Clause by treating him differently than other employees, and further, applied a discriminatory policy, practice, or custom, by singling out his SSN for dissemination. He then contends that Defendants violated his due process rights by providing false information at a meeting regarding his pay raise and terminating his employment. Hollis also argues that Defendants violated his First Amendment rights by disseminating his SSN and providing the false information regarding his pay raise.1


We review de novo a dismissal for failure to state a claim upon which relief may be granted, "accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff." Leib v. Hillsborough Cty. Pub. Transp. Comm'n, 558 F.3d 1301, 1305 (11th Cir. 2009). A Rule 12(b)(6) dismissal based on the statute of limitations is proper "if it is apparent from the face of the complaint that the claim is time-barred." Gonsalvez v. Celebrity Cruises, Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (per curiam) (quotation marks omitted). "We review de novo the district court's interpretation and application of

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the statute of limitations." Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 n.2 (11th Cir. 2003) (per curiam).

In Florida, the statute of limitations for a defamation action is two years and accrues upon the publication of the defamatory statement. Fla. Stat. § 95.11(4)(g); Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113, 114-15 (Fla. 1993) (per curiam). Florida's "delayed discovery" doctrine provides, generally, that "a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action." Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000) (per curiam). The doctrine is limited by statute to causes of action involving fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, and has only been extended by the Florida Supreme Court in the narrow context of a childhood sexual abuse case. Davis v. Monahan, 832 So. 2d 708, 710, 712 (Fla. 2002). The doctrine is inapplicable to actions for defamation. Yusuf Mohamad Excavation, Inc. v. Ringhaver Equip., Co., 793 So. 2d 1127, 1127-28 (Fla. Dist. Ct. App. 2001) (per curiam). Also, a statute of limitations may only be tolled in Florida based on a number of specific statutory grounds, which does not include ignorance of the law or of legal remedies. Fla. Stat. § 95.051; Hearndon, 767 So. 2d at 1185.

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"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) (per curiam). However, "this leniency 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) (quotation marks omitted). Further, while pleadings filed by a pro se litigant are construed liberally, pro se litigants must nonetheless comply with procedural rules. Alba v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

The district court did not err in dismissing Hollis's defamation claim for being untimely. The latest date that Hollis's cause of action could have accrued was well more than two years before he filed his initial complaint. Fla. Stat. § 95.11(4)(g); Flanagan, 629 So. 2d at 115. Moreover, Florida's delayed discovery doctrine is inapplicable, because that doctrine is confined to a limited set of circumstances and defamation is specifically excluded from its reach. Monahan, 832 So. 2d at 710; Ringhaver Equip., Co., 793 So. 2d at 1127-28. Also, Hollis's unawareness of his legal remedies did not toll the statute of limitations. See Fla. Stat. § 95.051; Hearndon, 767 So. 2d at 1185. Accordingly, we affirm as to this issue.

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A plaintiff must first exhaust his administrative remedies with the Equal Employment Opportunity Commission ("EEOC") before filing a complaint for discrimination under Title VII. Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336, 1339 (11th Cir. 2017). This is a mandatory claims processing rule, not a jurisdictional prerequisite, and a defendant may waive it as a defense if the issue is not timely raised. Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1849, 1851 (2019). The first step in this process is to timely file a charge of discrimination with the EEOC upon receiving unequivocal notice of an adverse employment decision. Stamper, 863 F.3d at 1340; Stewart v. Booker T. Washington Ins., 232 F.3d 844, 849 (11th Cir. 2000).

In general, a plaintiff may bring a lawsuit under 42 U.S.C. § 1983 when he is deprived of a federal right by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). This federal right may be constitutional or statutory in nature. Collier v. Dickinson, 477 F.3d 1306, 1310 (11th Cir. 2007). Title VII provides a vehicle for plaintiffs to sue for discriminatory employment practices, on the basis of race and other classifications. 42 U.S.C. § 2000e-5(f)(1); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Where the underlying facts are the same, disparate treatment claims under

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§ 1983 follow the same analytical framework as claims under Title VII. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

The district court did not err in dismissing Hollis's Title VII claims for his failure to exhaust his administrative remedies. While Hollis contends that his retaliation claims were actually brought under § 1983, he explicitly relied upon Title VII in stating those claims. Because Hollis did not allege that he exhausted his administrative remedies with the EEOC and Defendants timely raised the issue in their motion to dismiss Hollis's amended complaint, the district court properly dismissed Hollis's Title VII claims. See Davis, 139 S. Ct. at 1849, 1851; Stamper, 863 F.3d at 1339. Even if Hollis's retaliation claims were addressed under the framework of § 1983, they would be insufficiently pled to survive a motion to dismiss, as discussed below. See Carroll, 529 F.3d at 970. Accordingly, we affirm as to this issue.


To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, "naked assertions devoid of further factual enhancement" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and alterations omitted). Thus, while we must accept all of the complaint's allegations as true, we are "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). We review the district court's decision of whether to grant leave to amend a pleading for abuse of discretion. Walker v. S. Co. Servs., Inc., 279 F.3d 1289, 1291 (11th Cir. 2002).

A complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). Complaints that fail to comply with Rules 8 or 10, or both, are sometimes referred to as "shotgun pleadings." Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015).

Federal Rule of Civil Procedure 15 states, generally, that "[a] party may amend its pleading once as a matter of course," but requires "the opposing party's written consent or the court's leave" for...

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