Taylor v. Pekerol, 17-12570

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
PartiesVERSIAH TAYLOR, Plaintiff-Appellant, v. CHRISTOPHER PEKEROL, IRS-CI Agent, et al., Defendants, UNITED STATES OF AMERICA, Defendant-Appellee.
Docket NumberNo. 17-12570,17-12570
Decision Date07 January 2019

VERSIAH TAYLOR, Plaintiff-Appellant,
v.
CHRISTOPHER PEKEROL, IRS-CI Agent, et al., Defendants,
UNITED STATES OF AMERICA, Defendant-Appellee.

No. 17-12570

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

January 7, 2019


DO NOT PUBLISH

Non-Argument Calendar

D.C. Docket No. 5:14-cv-00096-RH-GRJ

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

Before MARCUS, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:

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Versiah Taylor, a federal prisoner proceeding pro se, appeals: (1) the denial of his motions for appointed counsel; (2) the partial dismissal of his third amended complaint, which raised Fourth, Fifth, and Eighth Amendment Bivens1 claims, unlawful disclosure claims under 26 U.S.C. § 7431, and conspiracy claims under 42 U.S.C. § 1985 against the United States, Internal Revenue Service ("IRS") agents Christopher Pekerol and Margaret Weiss, and United States Marshall Glenn Miller; and (3) the grant of summary judgment on his surviving unlawful disclosure claims. His case stems from an IRS investigation into his three businesses. During the course of the investigation, Taylor was arrested by state officials for cocaine possession and released on bond. Thereafter, Taylor was arrested by federal officials, remained in federal custody pretrial and throughout his trial, and ultimately, was found guilty by a jury of filing false tax returns, theft of government property, and identity theft.

On appeal, Taylor argues that the district court: (1) abused its discretion in denying his motions to appoint counsel and in not telling him the denials were immediately appealable; (2) erred in dismissing his Bivens and § 1985 claims because the defendants were not entitled to qualified immunity on his constitutional claims, and he sufficiently pled his § 1985 claim; (3) erred in

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granting summary judgment before addressing a pending discovery motion; and (4) violated his right to a jury trial. After careful review, we affirm.

I.

First, we reject Taylor's claim that the district court abused its discretion in handling his motion to appoint counsel. We review a district court's decision not to appoint counsel for abuse of discretion. Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361, 1365 (11th Cir. 2007). "A district court abuses its direction if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous." Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216-17 (11th Cir. 2009). The denial of a motion for appointment of counsel is not immediately appealable. See Holt v. Ford, 862 F.2d 850, 851-54 (11th Cir. 1989) (en banc) (§ 1983 case).

Under the Federal Rules of Civil Procedure, a party may file objections to a magistrate judge's ruling on nondispositive matters within 14 days of being served with the order. Fed. R. Civ. P. 72(a). A pro se litigant's failure to timely challenge a magistrate judge's nondispositive order in the district court waives the right to appeal the order. Smith, 487 F.3d at 1365; Farrow v. West, 320 F.3d 1235, 1248 n.21 (11th Cir. 2003). A pro se prisoner's court filings are deemed filed on the date they were delivered to prison authorities for mailing and are assumed to have

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been delivered on the date of signing, absent evidence to the contrary. Daker v. Comm'r, Ga. Dep't of Corrs., 820 F.3d 1278, 1286 (11th Cir. 2016).

"A plaintiff in a civil case has no constitutional right to counsel." Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). However, a district court may request, but not require, that an attorney represent an indigent plaintiff. 28 U.S.C. § 1915(e)(1); see Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989) (holding that the statute does not authorize "coercive appointments of counsel"). The court has broad discretion in deciding to appoint counsel and should do so only in "exceptional circumstances," where the facts and legal issues are so complex that the assistance of counsel is required. Bass, 170 F.3d at 1320; Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993).

For starters, Taylor failed to timely object to the magistrate judge's denial of his motion to appoint counsel, thus waiving the right to appeal from it. See Smith, 487 F.3d at 1365; Farrow, 320 F.3d at 1248 n.21. But even if the denial of his application for a lawyer were properly before us, we would conclude that the district court did not abuse its discretion in holding that it lacked authority to compel any lawyer to represent Taylor. The Supreme Court held in Mallard that district courts have no authority to compel a lawyer under 28 U.S.C. § 1915 to represent a party in a civil case, and there is no binding precedent that a district court has the inherent power to do so. See 28 U.S.C. § 1915(e)(1); Mallard, 490

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U.S. at 310; Citizens for Police Accountability, 572 F.3d at 1216-17. Moreover, the denial of counsel was not an immediately appealable order. See Holt, 862 F.2d at 851-54.

II.

Next, we disagree with Taylor that the district court erroneously dismissed his Bivens and § 1985 claims against Miller, Pekerol, and Weiss. Typically, we review de novo the grant of a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). But, if a party, after being notified of the time to file objections and the consequences of failing to do so, fails to properly object to a magistrate judge's Report and Recommendation ("R&R"), he "waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions." 11th Cir. R. 3-1. This means that "the party may not challenge them on appeal in the absence of plain error or manifest injustice." Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).

While we read briefs filed by pro se litigants liberally, issues not briefed on appeal are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). An appellant abandons a claim when he makes only passing references to it, or raises it in a perfunctory manner without supporting arguments and authority. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). In

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addition, we usually will not consider issues that were not raised in the district court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004).

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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id. While district courts should construe pro se complaints liberally, Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 2007), conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as facts will not prevent dismissal. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

Government officials may avoid liability under the doctrine of qualified immunity. Alcocer v. Mills, 906 F.3d 944, 950-51 (11th Cir. 2018). To receive qualified immunity, officials first must establish that they were acting within the scope of their discretionary authority. Id. at 951. If they do so, the burden shifts to the plaintiff to show that the officials were not entitled to qualified immunity both: (1) because they violated a constitutional right, and (2) because the violation was clearly established. Id.

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The Supreme Court held in Bivens that there exists an implied private right of action for damages against federal officers for violating a citizen's constitutional rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The violation must, however, be the proximate cause of damages. Dean v. Gladney, 621 F.2d 1331, 1335 (5th Cir. 1980).2 Because claims arising under 42 U.S.C. § 1983 and Bivens are similar, we generally apply § 1983 law to Bivens cases. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). To establish a claim for conspiracy to violate constitutional rights under 42 U.S.C. § 1983, the plaintiff must show the existence of a conspiracy that actually deprived him of a specific constitutional right. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010).

Section 1985 provides a way to redress conspiracies to violate civil rights. 42 U.S.C. § 1985; Farese v. Scherer, 342 F.3d 1223, 1230 (11th Cir. 2003). Section 1985(3) creates a cause of action for conspiracies that deprive any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. 42 U.S.C. § 1985(3). To state a § 1985(3) claim, a plaintiff must allege facts showing "(1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in

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his person or property of any right or privilege of a citizen of the United States." Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146-47 (11th Cir. 1996). To establish the second element, a plaintiff must show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. at 1247 (quotation omitted). Qualified immunity is not available as a defense to a 42 U.S.C. § 1985(3) claim. Johnson v. City of Fort Lauderdale, Fla., 126 F.3d 1372, 1379 (11th Cir. 1997).

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