M. Gibbs v. USA, et al

Filing

Opinion issued by court as to Appellant M. Eugene Gibbs. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13252
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cv-00075-MMH-TEM

M. EUGENE GIBBS,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Justice Department, Labor Department,
DOES 1 - 100,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 17, 2013)
Before CARNES, HULL, and JORDAN, Circuit Judges.
PER CURIAM:

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M. Eugene Gibbs, proceeding pro se, appeals the district court’s dismissal of
his second amended complaint as well as the district court’s denial of his motion to
amend his complaint and the grant of the defendants’ motion to stay the
requirement that the parties file a case management report. 1 Gibbs is a former
attorney who was disbarred in 2002. His briefs and other submissions to this Court
are generally incoherent and consist mainly of rambling tirades against certain
government officials and other prominent individuals. 2 We endeavor in this
opinion to parse out the legal contentions Gibbs has raised in order to resolve the
issues presented.
I.
Gibbs filed suit against the United States, various government agencies, and
“Does, 1-100,” alleging that: (1) the Department of Labor improperly suspended
or denied his disability benefits, administered under the Federal Employment
Compensation Act (FECA), and improperly held the pre-recoupment hearing over
the telephone; (2) the Department of Defense, Gibbs’ former employer, retaliated

1

In the Notice of Appeal, Gibbs purports to appeal eighteen other orders issued by the
district court, but he has made no arguments concerning those orders to this Court, so any
challenges to those orders are abandoned. Marek v. Singletary, 62 F.3d 1295, 1298 (11th Cir.
1995) (“Issues not clearly raised in the briefs are considered abandoned.”).
2

For example, Gibbs asserts: “The actions by Appellees, dilutes and/or destroys the right
to vote Blacks have fought and died for. Appellees, using the knowledge that Congressman John
Lewis’ (D-Ga) wealth is based on art stolen from Clark Atlanta University: and Fisk, Hampton,
Morgan State, Tuskegee, and Howard Universities, control the Congressional Black Caucus, and
Black public figures such as, William “Bill” Cosby, Oprah Winfrey and Julian Bond . . .”
2

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against him after he complained about its misuse of funds; (3) the Department of
Labor negligently failed to protect him after he complained about the DOD’s
misuse of funds; (4) various government employees conspired to deny him FECA
benefits and otherwise harm him; and (5) the defendants violated the Racketeer
Influenced and Corrupt Organizations (RICO) Act. Gibbs appears to believe that
all of the actions allegedly taken against him stem from his representation of
William H. Johnson’s estate in a lawsuit where he alleged that Johnson’s family
was illegally deprived of Johnson’s art upon his death. That case has been
decided, Johnson v. Smithsonian Institution, 4 F. App’x 69 (2d Cir. 2001)
(unpublished), and the issues involved in it are not before us, but Gibbs’ briefs to
this Court are filled with extreme accusations related to that case, which Gibbs
describes as “the largest art conspiracy in history.” Gibbs contends that
government officials have “sought and secured [his] destruction” because of his
participation in the case.
On its own motion, the court struck Gibbs’ first complaint, finding that it
constituted “impermissible shotgun pleading,” and it instructed him to file an
amended complaint consistent with its order or face dismissal of his lawsuit.
Gibbs filed a first and then a second amended complaint and later filed a motion
for leave to further amend his complaint, which was denied. The defendants filed

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a motion to dismiss Gibbs’ second amended complaint.3 Before ruling on that
motion, the district court ordered the parties to show cause why the case should not
be dismissed for their failure to file a case management report. Both Gibbs and the
defendants timely responded to the court’s show cause order. The defendants
moved to stay the filing of the report until the court resolved their motion to
dismiss. The court granted the defendants’ motion to stay, recognizing that Gibbs
opposed the motion and the opposition period had not yet run, but concluding that
the defendants’ motion to stay was due to be granted. The court then dismissed
Gibbs’ second amended complaint with prejudice, concluding that it did not have
subject matter jurisdiction over Gibbs’ FECA benefits, retaliation, and negligence
claims, and that his conspiracy and RICO allegations failed to state a claim. This
is Gibbs’ appeal.
II.
The court dismissed three of Gibbs’ claims on the grounds that it lacked
subject matter jurisdiction over them. We review de novo the district court’s
dismissal of claims for lack of subject matter jurisdiction. See Dalrymple v.
United States, 460 F.3d 1318, 1324 (11th Cir. 2006). Gibbs contends that the court
should not have sua sponte dismissed any claims for lack of subject matter
jurisdiction. That contention is incorrect. See Cadet v. Bulger, 377 F.3d 1173,
3

The defendants’ motion was filed on behalf of the United States, the Department of
Labor, the Department of Justice, and the Department of Defense.
4

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1179 (11th Cir. 2004) (“Federal courts are obligated to inquire into subject-matter
jurisdiction sua sponte whenever it may be lacking.”) (quotation marks omitted).
Gibbs’ first allegation involved the disability benefits he received under
FECA. The Office of Workers’ Compensation Programs (OWCP) determined that
Gibbs had been overpaid, finding that he misrepresented and concealed business
activity while he was receiving benefits. Gibbs was given the opportunity for a
pre-recoupment hearing, and he requested an oral hearing. On the request form, he
was given the option of a telephonic (instead of an in-person) hearing: “If OWCP
deems your case suitable for teleconference and you are open to this option, please
check here.” Although Gibbs did not check that option, he was given a telephonic,
instead of an in-person, hearing. He did not participate in the telephonic hearing or
provide an explanation for his failure to do so. The OWCP ruled against him. He
appealed that decision to the Department of Labor’s Employee Compensation
Appeals Board, which affirmed. Gibbs challenged that decision in the district
court, which dismissed his claim based on lack of subject matter jurisdiction.
“The Secretary [of Labor] is authorized to administer and decide all
questions arising under FECA. Under the authority granted in [5 U.S.C.] §
8145(2), the Secretary has delegated responsibility for administering FECA to the
Director of the OWCP.” Noble v. U.S., 216 F.3d 1229, 1234 (11th Cir. 2000)
(citations omitted). A decision of the OWCP generally is not subject to judicial
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review. See 5 U.S.C. § 8128(b); Woodruff v. U.S. Dept. of Labor, Office of
Workers Compensation Program, 954 F.2d 634, 637 (11th Cir. 1992). A court
may exercise jurisdiction to review the OWCP’s decision under FECA only if it
violates a “clear statutory mandate or prohibition” or the Constitution. Woodruff,
954 F.2d at 639.
Telephonic hearings are specifically permitted by the OWCP regulations and
do not require the claimant’s consent. See 20 C.F.R. § 10.615 (2012) (“Initially,
the claimant can choose between two formats: An oral hearing or a review of the
written record. At the discretion of the hearing representative, an oral hearing may
be conducted by telephone, teleconference, videoconference or other electronic
means.”). The decision to give Gibbs a phone hearing did not violate a statutory
mandate. Although Gibbs contends that the phone hearing violated his
constitutional due process rights, it did not. He was given notice and opportunity
for a hearing before recoupment. See Mathews v. Eldridge, 424 U.S. 319, 333, 96
S.Ct. 893, 902 (1976) (“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.”)
(quotation marks omitted). The district court correctly concluded that it lacked
subject matter jurisdiction over that claim.
Gibbs also argues that the DOD, his former employer, retaliated against him
by demoting him after he filed a complaint alleging that it was misusing employee
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travel funds. The Civil Service Reform Act “specifically lists reprisal for
whistleblowing as a prohibited personnel practice.” Ferry v. Hayden, 954 F.2d
658, 661 (11th Cir. 1992) (citing 5 U.S.C. § 2302(b)(8)(A)). The remedies
provided for in that Act are a government employee’s exclusive remedies when
challenging a federal personnel action taken against him, and the Act precludes
judicial review. Stephens v. Dep’t of Health and Human Servs., 901 F.2d 1571,
1575–76 (11th Cir. 1990). Therefore, the district court lacked jurisdiction over
Gibbs’ claim and correctly dismissed it. 4
Gibbs also contends that the DOL had a duty to protect him after he reported
that the DOD had misused funds. He claims the DOL was negligent because it
failed to protect him from numerous harms done to him by various government
employees, including an Assistant United States Attorney who allegedly caused
Gibbs’ medical records to be stolen from his psychiatrist. The FTCA is “a
specific, congressional exception” to the United States’ sovereign immunity.
Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir. 1994). Before suing the
United States under the FTCA, a claimant must exhaust the required administrative
remedies. 28 U.S.C. § 2675(a). If a party files a lawsuit in a district court before
filing an administrative claim and exhausting the statutory administrative remedies,

4

The district court was also correct in noting alternatively that it lacked jurisdiction over
Gibbs’ retaliation claim because he failed to establish or even allege that he had properly
exhausted his administrative remedies. See Ferry, 954 F.2d at 661.
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the suit is premature and the district court lacks subject matter jurisdiction over the
action. Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir.
2008). Gibbs has not filed anything showing or even alleging that he exhausted his
administrative remedies. The district court was therefore correct to conclude that it
lacked subject matter jurisdiction over Gibbs’s negligence claim.
III.
The district court dismissed Gibbs’ remaining claims under 12(b)(6) because
he failed to state a claim upon which relief could be granted. “We review de novo
the district court’s grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim, accepting the factual allegations in the complaint as true
and construing them in the light most favorable to the plaintiff.” D.P. ex rel. E.P.
v. Sch. Bd. of Broward Cnty., 483 F.3d 725, 728 (11th Cir. 2007). “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. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citation and
quotation marks omitted). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.

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Gibbs alleges that certain prominent people, including Representative John
Lewis and Bill Cosby, conspired to steal art from the family of William H.
Johnson, Gibbs’ former client. Patiently parsing Gibbs’ confusing allegations, the
district court concluded that Gibbs was attempting to proceed under 42 U.S.C. §
1985(3) by alleging a civil rights conspiracy. To state a claim under § 1985(3), a
plaintiff must allege: (1) a conspiracy; (2) for the purpose of depriving a 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) resulting in an injury to person or property, or a deprivation of any right or
privilege of a citizen of the United States. Childree v. UAP/GA AG CHEM, Inc.,
92 F.3d 1140, 1146-47 (11th Cir. 1996). The district court correctly found that
Gibbs’ allegations do not include any facts that would support an inference that the
defendants agreed to act in order to deprive Gibbs of any rights.
Gibbs also alleges under the Racketeer Influenced and Corrupt
Organizations Act (RICO) that the defendants furthered their conspiracy to steal art
from Gibbs’ former client by harming Gibbs in various ways, including having him
disbarred and destroying his health. To state a civil RICO claim, a plaintiff must
allege (1) a civil violation of 18 U.S.C. § 1962; (2) injury to business or property;
and (3) that the violation caused the injury. Avirgan v. Hull, 932 F.2d 1572, 1577
(11th Cir. 1991) (citing 18 U.S.C. § 1964(c)). The district court correctly found
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that Gibbs’ digressive accusations about the psychological and mental damage
caused by the defendants is insufficient to allege that defendants violated § 1962.

IV.
The district court denied Gibbs’ motion to amend his complaint because he
failed to attach a proposed amended complaint and because it was unclear what
cause of action he sought to assert. We review a district court’s decision to deny a
motion to amend only for an abuse of discretion. Hall v. United Ins. Co. of
America, 367 F.3d 1255, 1263 (11th Cir. 2004). A district court “may properly
deny leave to amend the complaint under Rule 15(a) when such amendment would
be futile.” Id. Gibbs’ failure to articulate a viable claim in his second amended
complaint and his failure to attach a proposed amended complaint to his motion to
dismiss show the futility of granting him leave to amend his complaint again. 5
The district court did not err in denying his motion.
Nor did the court err in granting the defendants’ motion to stay the filing of a
case management report until a ruling was entered on their motion to dismiss
Gibbs’ second amended complaint. The court entered the order granting the stay
without allowing Gibbs time to respond to the motion. After the court entered the
5

Gibbs argues to this Court that his “uncontroverted affidavit” is evidence that he should
have been permitted to amend his complaint. That affidavit does not include any relevant
information that the district court did not already have before it. It contains nothing more than a
reiteration of Gibbs’ general accusations.
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order, Gibbs filed a motion entitled “Plaintiff’s Emergency Amended Opposition
to the Defendants’ Motion to Stay the Case Management Report.” That motion,
like all of Gibbs’ submissions to the court, consisted mainly of extreme allegations
against the government and various individuals (including that he was falsely
arrested and tortured and that a “John Doe” had hacked into his computer); it
utterly failed to advance any arguments as to why the court should have denied the
defendants’ motion to stay. “[W]e accord district courts broad discretion over the
management of pre-trial activities, including discovery and scheduling.” Johnson
v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001). We
review the court’s ruling only for an abuse of that discretion. Id. at 1243. Gibbs
has failed to articulate either to the district court or to this court even one reason
why the court should have denied the stay.
V.
The district court was commendably patient and thorough in sifting through
the wild accusations and incredible stories contained in every document that Gibbs
submitted to the district court. We have tried to approach this case with the same
thoroughness and have endeavored to understand and address all the arguments
Gibbs raised before us. Any other arguments he may have intended to make in this
appeal are waived because they have not been clearly raised or adequately argued.
See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).
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AFFIRMED.

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