Donald Tobkin v. Frederick Rudzik, et al

Filing

Opinion issued by court as to Appellant Donald Alan Tobkin. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13350

Date Filed: 03/23/2016

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13350
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-21120-KMM,
Bkcy No. 13-bkc-01740-LMI
In re:
DONALD ALAN TOBKIN,
Debtor.
______________________________________________________________
DONALD ALAN TOBKIN,
Plaintiff-Appellant,
versus
FREDERICK FRANCIS RUDZIK,
TYMEKA SCOTT,
BARBARA MACKEY,
FLORIDA DEPARTMENT OF REVENUE,
Defendants-Appellees.

Case: 15-13350

Date Filed: 03/23/2016

Page: 2 of 4

________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 23, 2016)
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Donald Tobkin appeals the district court’s dismissal of his amended
complaint, which alleged that Frederick Rudzik, Tymeka Scott, Barbara Mackey,
and the State of Florida Department of Revenue violated his constitutional rights
and various state laws by filing proofs of claim against him in his bankruptcy
proceedings.
After Tobkin filed for bankruptcy, the defendants filed proofs of claim
relating to his domestic support obligations. Tobkin filed a pro se complaint in the
bankruptcy court asserting that the proofs of claim were “false, falsified, forged,
unlawful, exaggerated, invalid, void, and/or unenforceable” because Scott filed an
arrearage affidavit in which she impersonated a Deputy Clerk of Florida’s Ninth
Judicial Circuit, and the other defendants knew or should have known that when
they relied on that affidavit. The district court concluded that Tobkin’s complaint
alleged claims arising under 42 U.S.C. § 1983, withdrew the reference to the
bankruptcy court, and ordered Tobkin to refile his complaint in the district court.
2

Case: 15-13350

Date Filed: 03/23/2016

Page: 3 of 4

Tobkin filed an amended complaint reiterating his claims. After the
defendants moved to dismiss and Tobkin responded to that motion, John Ostrow
entered an appearance as Tobkin’s attorney. The parties then filed a joint
scheduling report, which stated that there was no need to amend the pleadings “at
this time.” Soon after, the district court granted the defendants’ motion to dismiss,
finding that Tobkin’s complaint was “bereft of any facts necessary to state a claim
for relief that is plausible on its face, [and] full of conclusory, unfounded, and
borderline unintelligible allegations.”
We review de novo a district court’s dismissal for failure to state a claim,
viewing the allegations in the complaint as true. Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997). “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, 129 S. Ct. 1937, 1949
(2009) (quotation marks omitted). Facial plausibility means “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. “To prevail on a
claim under § 1983, a plaintiff must demonstrate both (1) that the defendant
deprived [him] of a right secured under the Constitution or federal law and (2) that

3

Case: 15-13350

Date Filed: 03/23/2016

Page: 4 of 4

such a deprivation occurred under color of state law.” Arrington v. Cobb Cty., 139
F.3d 865, 872 (11th Cir. 1998).
Tobkin’s amended complaint was entirely devoid of factual allegations that
give rise to a cognizable claim under § 1983. His only factual allegations were that
Scott impersonated a state court’s deputy clerk and that the other defendants knew
it. He failed to specify any “right secured under the Constitution or federal law”
that their actions violated. Arrington, 139 F.3d at 872. To the extent that Tobkin
now argues that the district court erred by failing to grant him leave to amend his
complaint, that argument is a nonstarter. “A district court is not required to grant a
plaintiff leave to amend his complaint sua sponte when the plaintiff, who is
represented by counsel, never filed a motion to amend nor requested leave to
amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002) (en banc). Not only did Tobkin’s attorney fail to
request leave to amend, he indicated in the joint scheduling report that he did not
need to amend the pleadings. The district court did not err in dismissing Tobkin’s
amended complaint.
AFFIRMED.

4