Silberman v. Miami Dade Transit

• Decision Date: 17 June 2019
• Docket Number: No. 17-15092,17-15092
• Citation: 927 F.3d 1123
• Parties: Charles SILBERMAN, Plaintiff-Appellant, v. MIAMI DADE TRANSIT, Defendant - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

927 F.3d 1123

Charles SILBERMAN, Plaintiff-Appellant,

v.MIAMI DADE TRANSIT, Defendant - Appellee.

No. 17-15092

United States Court of Appeals, Eleventh Circuit.

June 17, 2019

Charles Silberman, Pro Se.

Ana Angelica Viciana, Miami-Dade County Attorney's Office, MIAMI, FL, for Defendant-Appellee.

Thomas E. Chandler, Teresa Kwong, U.S. Department of Justice, Civil Rights Division, Appellate Section, WASHINGTON, DC, for UNITED STATES OF AMERICA.

Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL,^* District Judge.

NEWSOM, Circuit Judge:

Following several distressing encounters with Miami-Dade Transit bus drivers, Charles Silberman filed a pro se action against MDT under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. , and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Still ably representing himself, Silberman now appeals the district court's order granting MDT's motion to dismiss. In short, the district court concluded (1) that MDT is not sui juris , which is just a fancy way of saying that it doesn't have the capacity to sue and be sued separately from Miami-Dade County, (2) that the Eleventh Amendment bars Silberman's Title II claim, and (3) that Silberman failed to state a claim for compensatory damages under § 504 because he hadn't alleged that any MDT "official" acted with the required "deliberate indifference."

The resolution of this case is complicated by a thorny threshold issue (or really, a series of related issues) that we have to address before jumping into the merits. Most prominently, we conclude—and all here seem to agree—that the lone named defendant, MDT, can't be sued under Florida law. Having reached the same conclusion, the district court offered to allow Silberman to amend his complaint to substitute the County in MDT's place, but he declined to do so. Now, though, before us, Silberman does want to substitute the County, and thus effectively to amend his complaint nunc pro tunc . It's a procedural mess.

We hold that because MDT was the wrong party from the get-go, we can't sub in the County on appeal; rather, such a correction could occur only in the district court. Ordinarily, we might be inclined to remand to allow Silberman one more shot, particularly given his pro se status. We conclude, however, that any further amendment of the complaint would be futile, as Silberman didn't—and for reasons we'll explain, can't—otherwise state a claim. Accordingly, we affirm the district court's dismissal.

I

A

Because this case arises at the motion-to-dismiss stage, we accept as true the facts as alleged in Silberman's complaint. See Bailey v. Wheeler , 843 F.3d 473, 480 (11th Cir. 2016). Silberman suffers from "severe depression recurrent with psychotic episodes." To help cope with his illness, his psychiatrist prescribed him a service dog—named Oscar—who was trained to "prevent or interrupt [Silberman's] impulsive or destructive behaviors, such as suicide."

Silberman's claims stem from several instances in which he attempted to ride MDT buses while accompanied by Oscar. In one encounter, a bus driver "refused to continue on her route while [Silberman] remained on board," causing other passengers to "scream[ ]," "cuss[ ]," and "mock[ ]" him "because of [his] disability." Silberman promptly reported the incident to Marcos Ortega, MDT's ADA officer, and asked him to do what he could "to see this discrimination practice ends." Ortega soon responded that MDT's Office of Civil Rights and Labor Relations had investigated and determined that the driver "clearly failed" to comply with the ADA and "MDT's own internal procedures and training." In concluding his email, Ortega reassured Silberman that the driver would face "appropriate disciplinary action and a comprehensive retraining on all ADA requirements."

Silberman later made two similar complaints to Ortega. In one, Silberman stated that he had "once again" faced discrimination at the hands of an MDT bus driver and asked Ortega to consult the bus's audio and video recordings to get a sense of what happened. Although Silberman's complaint was short on detail, Ortega again acknowledged that the driver had violated the ADA and promised disciplinary action and retraining. Finally, Silberman complained to Ortega that an MDT bus driver had "intentionally passed" him at a bus stop and that the driver had later acknowledged that he did so because of Oscar. Silberman chose to drop this complaint, however, because he couldn't obtain video and audio recordings to corroborate his allegations.

B

Silberman filed a two-count complaint in the Southern District of Florida alleging that he had experienced "indifferent or ... bad faith intentional discrimination" at the hands of MDT bus drivers "numerous times." In Count I, which alleged violations of Title II of the ADA, Silberman faulted MDT's "practices, policies and procedures," and sought compensatory damages, costs, and "any and all other relief that may be necessary and appropriate." Count II raised a nearly identical claim under § 504 of the Rehabilitation Act, coupled with the additional assertion that "MDT receives federal financial assistance" and is thus "a covered entity within the meaning of the RA."

Through the Miami-Dade County Attorney's office, MDT moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. MDT first argued that it is not sui juris and that Silberman's complaint "may be dismissed for this reason alone." Beyond that, MDT contended that, under Florida law, "sovereign immunity irrefutably applies" where, as in this case, "the complaint specifically allege[s] bad faith or willful conduct." Finally, MDT argued that Silberman didn't state a claim for compensatory damages because he didn't "connect the Department" as such—separately from the individual bus drivers—"to the alleged wrong."¹

Adopting the magistrate judge's report and recommendation, the district court held that MDT is not sui juris and dismissed Silberman's complaint without prejudice. Having done so, the court went on to dismiss Silberman's Title II claim with prejudice and his § 504 claim without prejudice. As to the Title II claim, the court "based [its decision] on [MDT's] (and the County's) sovereign immunity." This seems to have been a reference to the magistrate judge's twin determinations (1) that "the Eleventh Amendment bars [Silberman's] ADA claim" because he sought only retrospective monetary relief and (2) that, with respect to the conduct at issue here, Congress hadn't validly abrogated the County's sovereign immunity.

The district court concluded that Silberman's § 504 claim survived the Eleventh Amendment, harking back to the magistrate judge's determination that "Congress ha[d] explicitly conditioned the acceptance of federal funding on a state's waiver of sovereign immunity" with respect to § 504 liability. Even so, the magistrate judge concluded—and the district court agreed—that, as originally pleaded, Silberman's claim for compensatory damages under § 504 failed on the merits because he hadn't alleged "intentional discrimination or gross indifference" on the part of any MDT "officials" other than the line-level bus drivers.

The district court gave Silberman more than three weeks "to amend the Complaint to substitute the County as the proper Defendant" and "to include more specific allegations as to intentional or deliberate discrimination from a[n] MDT official to support [a claim for] compensatory damages." Silberman did neither, but instead filed a motion for reconsideration. Although Silberman devoted his motion primarily to responding to the district court's sovereign-immunity analysis, two footnotes are important for our purposes. First, he expressly "agreed with MDT" that it is not sui juris . See Pl.'s Mot. Recons. at 2 n.2 (stating that "under Miami Dade County Code section 2-145, MDT does not have the capacity to sue or be sued"). Second, he acknowledged that the district court had given him leave to amend his complaint "to include more specific allegations as to intentional or deliberate discrimination from a[n] MDT ‘official,’ " but said that he "w[ould] not amend the Complaint" toward that end "because a[n] MDT ‘official’ did not intentionally or deliberately discriminate" against him. Id. n.3.

The amendment deadline thus came and went, and true to his word, Silberman didn't update his complaint to strengthen his factual allegations. Nor did he amend his complaint to name the County—either in place of or in addition to MDT—as a defendant. The district court thereafter denied Silberman's motion for reconsideration and ordered the case closed. This appeal followed.

II

A

We first address Silberman's decision to name MDT, rather than the County, as the sole defendant in this case. Under Federal Rule of Civil Procedure 17(b)(3), a party's "[c]apacity to sue or be sued is determined ... by the law of the state where the court is located." Again, the district court held that MDT is not sui juris under Florida law and, on that basis, dismissed Silberman's complaint without prejudice.

Silberman doesn't contend on appeal that the district court erred in doing so. To the contrary, he continues to acknowledge—as he did in his response to MDT's motion to dismiss—that MDT doesn't have the capacity to sue or be sued separately from the County.² As already explained, Silberman declined the district court's invitation to substitute the County, but he now asks us, for the first time on appeal, to make the switch under Federal Rule of Appellate Procedure 43.

Substitution of parties under Rule 43 is often a routine matter—when, say, during the pendency of the appeal, a party to the district court proceeding dies or a new individual assumes the Office of Attorney General. Our authority to substitute parties in other situations, though, is more limited. We've explained that although Rule 43(b) "does allow substitution for reasons other than death, the rule is based on...