Preston Lewis v. Thomas Leonard

Filing

Opinion issued by court as to Appellant Preston Jermain Lewis. 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: 17-11291

Date Filed: 11/27/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11291
Non-Argument Calendar
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D.C. Docket No. 3:15-cv-00234-MCR-EMT

PRESTON JERMAIN LEWIS,
Plaintiff-Appellant,
versus
THOMAS JOSEPH LEONARD,
Director, Adult and Secondary Education,
Pensacola State College,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 27, 2017)

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Before TJOFLAT, HULL and NEWSOM, Circuit Judges.
PER CURIAM:
In this 42 U.S.C. § 1983 action, plaintiff Preston Jermain Lewis, a former
student at Pensacola State College (“PSC”), appeals pro se the district court’s order
granting summary judgment in favor of defendant Thomas Joseph Leonard, the
former Director of the Office of Student Conduct at PSC. Lewis’s § 1983 action
arose out of an investigation of student misconduct at PSC. The district court
granted defendant Leonard’s motion for summary judgment, concluding that
Lewis’s claims were barred by the doctrine of res judicata. After review, we
affirm.
I. BACKGROUND FACTS
A.

Lewis’s First § 1983 Action in 2013
In June 2013, Lewis filed pro se a § 1983 action against defendant Leonard

alleging race discrimination during Leonard’s investigation into student
misconduct at PSC in 2013. Specifically, Lewis, who is African American, alleged
that he was called out of a class and taken to a conference room, where defendant
Leonard asked him if he had used profanity toward one of his professors. After
Lewis denied doing so, defendant Leonard told Lewis to leave PSC’s campus or
face arrest for trespassing. Later, Lewis was told by PSC officials that the incident

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was a mistake and that he could return to campus. Lewis alleged that defendant
Leonard’s actions were based on race.
On July 28, 2014, the district court granted defendant Leonard’s motion to
dismiss based on qualified immunity and dismissed Lewis’s § 1983 complaint for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Lewis did
not appeal the dismissal.
B.

Lewis’s Second § 1983 Action in 2015
About nine months later, on May 22, 2015, Lewis filed this second,

counseled § 1983 complaint against defendant Leonard alleging claims of race
discrimination and deprivation of due process. Like his first complaint, Lewis’s
second complaint described his 2013 encounter with defendant Leonard and
alleged that defendant Leonard asked Lewis if he had sexually harassed the
professor and then dismissed Lewis from PSC without conducting a proper
investigation.
During discovery, plaintiff Lewis failed to appear at his noticed deposition.
Shortly thereafter, Lewis’s attorney withdrew, citing Lewis’s failure to appear, and
Lewis elected to proceed pro se.
Defendant Leonard filed a motion for sanctions pursuant to Federal Rule of
Civil Procedure 37(d)(1)(A), noting that Lewis had advised his attorney (in the
early morning hours before the deposition was scheduled) that he would not
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appear. In his pro se response, Lewis did not dispute that his deposition was
scheduled and that he failed to appear. Instead, Lewis explained that he decided he
could not attend the deposition (1) after his former attorney advised him that
defendant Leonard had not yet responded to interrogatories, and (2) because Lewis
and his former attorney did not reach an understanding about how to handle the
situation.
A magistrate judge (“the court”) granted defendant Leonard’s motion for
sanctions, concluding that plaintiff Lewis had not “shown that his failure to appear
was substantially justified or that other circumstances made the award of expenses
unjust.”1 The court explained that even assuming that Lewis “had properly
propounded interrogatories to Defendant and Defendant had indeed failed to
answer them, this alone does not entitle Plaintiff to purposely avoid his
deposition.” The court ordered defendant Leonard to file a notice setting forth the
amount of fees sought. In the order, the court advised Lewis that if he elected not
to file a response to defendant Leonard’s notice, Lewis would “forfeit[ ] the right
to contest the award sought by Defendant and any determination by this court that
he is responsible for payment of the award.” Lewis did not file a response, and the

1

After the district court referred the case to the magistrate judge to handle non-dispositive
matters, the magistrate judge entered the order granting defendant Leonard’s motion for
sanctions and the subsequent order directing plaintiff Lewis to pay $4,730 in attorney’s fees.
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court ordered Lewis to pay $4,730 in attorney’s fees related to Lewis’s failure to
attend the scheduled deposition.
C.

Motion for Summary Judgment in Second Action
Following discovery, defendant Leonard filed a motion for summary

judgment, asserting that plaintiff Lewis’s claims were barred by res judicata
because they were litigated in the prior action. Lewis’s response to the summary
judgment motion recounted the confrontation with defendant Leonard and argued
the merits of his claims, but did not address the issue of res judicata.
The magistrate judge issued a report (“R&R”) recommending that the
district court grant defendant Leonard’s motion for summary judgment because
Lewis’s claims were barred by res judicata. Lewis filed an objection to the R&R
that argued the merits of his claims, but did not object to the magistrate judge’s
conclusion that his claims were barred by res judicata. The district court adopted
the R&R and granted Leonard’s summary judgment motion.
II. DISCUSSION
A.

Summary Judgment
On appeal, plaintiff Lewis’s attack on the district court’s summary judgment

ruling addresses only the merits of his claims. 2 Lewis does not address, much less

2

For example, plaintiff Lewis argues that the district court failed to consider his summary
judgment evidence—including a statement by a PSC officer about lifting a trespass warning
given to Lewis and also the admissions by PSC officials that the school had made a mistake—
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challenge, the district court’s basis for granting summary judgment—the
conclusion that res judicata barred Lewis’s claims. Indeed, there is no mention of
the district court’s res judicata ruling anywhere in Lewis’s appeal brief.
Although we construe pro se briefs liberally, we will not act as de facto
counsel for litigants, and a pro se litigant who offers no substantive argument on an
issue in his brief abandons the issue on appeal. Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008). Because Lewis does not argue that the district court
misapplied the doctrine of res judicata to his case, he has abandoned this issue.
Even if plaintiff Lewis had properly preserved the issue, the district court
properly concluded that Lewis’s second § 1983 action against defendant Leonard
was barred by res judicata. Under that doctrine (also known as claim preclusion), a
claim is barred by a prior suit if: “(1) there is a final judgment on the merits; (2) the
decision was rendered by a court of competent jurisdiction; (3) the parties . . . are
identical in both suits; and (4) the same cause of action is involved in both cases.”
Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010)
(quotation marks omitted). All four conditions are met here.
First, there was a final judgment on the merits in Lewis’s prior § 1983
action, because the court dismissed Lewis’s complaint for failure to state a claim

that Lewis contends supported an inference of racial discrimination. Lewis also states that he
was deprived of his liberty and property interests without due process of law.
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for relief pursuant to Rule 12(b)(6). Federated Dep't Stores, Inc. v. Moitie, 452
U.S. 394, 399 n.3, 101 S. Ct. 2424, 2428 n.3 (1981) (“[A] dismissal for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the
merits.”) (quotation marks omitted); NAACP v. Hunt, 891 F.2d 1555, 1560 (11th
Cir. 1998) (same). Second, the dismissal was rendered by a court of competent
jurisdiction, because it involved a federal claim and properly invoked the
jurisdiction of the Northern District of Florida. Third, the parties are identical in
each action. Fourth, the cases involve the same cause of action, because the claims
raised in both cases are based upon the 2013 incident between Leonard and Lewis
that occurred at PSC. See Griswold, 598 F.3d at 1293 (“If a case arises out of the
same nucleus of operative facts, or is based upon the same factual predicate, as a
former action, the two cases are really the same ‘claim’ or ‘cause of action’ for
purposes of res judicata.” (alterations and quotation marks omitted)).
Thus, we have no basis to overturn the district court’s decision granting
summary judgment.
B.

Sanctions Order

On appeal, plaintiff Lewis also argues that the court abused its discretion by
ordering him to pay $4,730 in attorney’s fees to defendant Leonard related to
Lewis’s failure to attend the scheduled deposition.

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Under Rule 37(d), the district court may grant a motion for sanctions if a
party fails to attend his own deposition after being properly served with notice of
the deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). Either in lieu of, or in addition to,
other sanctions, the district court “must require” either the party that failed to
appear, or his attorney, or both “to pay the reasonable expenses, including
attorney’s fees, caused by the failure, unless the failure was substantially justified
or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(d)(3). We review for abuse of discretion a district court’s determination that
there was no substantial justification for the conduct that resulted in the ordered
sanctions. Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1162-63 (11th Cir.
1993).
Here, plaintiff Lewis has not shown that the court abused its discretion in
granting the motion for sanctions. Lewis has never disputed that he failed to attend
his properly set deposition. The only justification Lewis ever offered for his
failure to attend was that he believed he should not be deposed until after
defendant Leonard answered interrogatories. Lewis says that, on the eve of his
deposition, he learned from his former attorney that defendant Leonard had not
answered the interrogatories and that he and his attorney did not have an
understanding about how to respond. As the court noted, however, the proper
response to such a concern was to file a motion to compel interrogatory responses,
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not for Lewis to refuse to attend his duly noticed deposition only hours before it
was set to begin.
On appeal, plaintiff Lewis points out that defendant Leonard’s attorney also
did not appear at the noticed address in Pensacola for the deposition. Although
true, it ignores the reason. On the morning of the deposition, as the attorneys for
both parties were driving from Tallahassee to Pensacola to take the deposition,
Lewis’s attorney learned that Lewis refused to attend. Lewis’s attorney then
advised Leonard’s attorney of this fact, and Leonard’s attorney turned around and
drove back to Tallahassee. Under the circumstances, we find no abuse of
discretion in the district court’s determination that Lewis’s failure to attend the
deposition was not substantially justified.
To the extent Lewis argues that the amount of the award places a heavy
financial burden on him, it is clear that Lewis failed to file a response to the notice
of attorney’s fees in the district court and did not contest the amount of the award
in the district court. Thus, Lewis has waived this issue on appeal, and we do not
address it. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th
Cir. 2004).
AFFIRMED.

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