           Case: 19-14497   Date Filed: 08/17/2020   Page: 1 of 9



                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14497
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:19-cv-01428-RBD-GJK


STACI-JO BARNES, ENA BARNES,

                                                     Plaintiffs-Appellants,

                                        versus

FEDERAL COMMUNICATIONS
COMMISSION,
FEDERAL BUREAU OF INVESTIGATION,
NATIONAL SECURITY AGENCY,

                                                     Defendants-Appellees.
                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 17, 2020)

Before WILSON, BRASHER and ANDERSON, Circuit Judges.

PER CURIAM:
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       Staci-Jo Barnes,1 proceeding pro se, appeals the district court’s order

dismissing her amended complaint with prejudice for failure to either (1) pay the

required filing fee or (2) comply with the district court’s order to file a renewed

motion to proceed in forma pauperis (“IFP”). The Federal Communications

Commission, the Federal Bureau of Investigation, and the National Security Agency

have moved for summary affirmance and to stay the briefing schedule. Upon

consideration, the agencies’ motion for summary affirmance is due to be

GRANTED. Accordingly, the accompanying motion to stay the briefing schedule is

DENIED as moot.

                                    BACKGROUND

       Barnes filed this lawsuit against the Federal Communications Commission,

the Federal Bureau of Investigation, and the National Security Agency alleging

various claims for invasion of privacy and misappropriation of private information.

Barnes alleges that the three agencies have tampered with her mail, wiretapped her

phone, hacked her computer, and monitored the interior of her home through

cameras placed in cable boxes for almost ten years. She further alleges that the

agencies misappropriated and illegally disseminated the information learned through

these activities to film producers for the creation of film characters and plots. Finally,



       1
         This appeal was administratively dismissed as to co-plaintiff Ena Barnes for want of
prosecution on January 6, 2020.
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she claims that the agencies have obstructed justice by preventing her from

corresponding with the court and retaining legal counsel and by defaming her as part

of a wider campaign of harassment and intimidation.

      Along with her complaint, Barnes filed a form application to proceed IFP, in

which she alleged that her gross wages totaled $400 per month. Barnes also included

a handwritten statement, explaining that she had been “blacklisted” by the agencies

and, as a result, had been unable to find regular employment. She stated that she had

$30 in her checking and savings accounts, spent $250 per month on utilities and

transportation, and had debt totaling $35,000.

      A magistrate judge recommended denying Barnes’s IFP motion and

dismissing her complaint with prejudice. The magistrate judge concluded that

Barnes’s complaint was frivolous and did not contain a short and plain statement

establishing a right to relief as required by Federal Rule of Civil Procedure 8. On

that basis, and because it was Barnes’s third complaint asserting these claims against

the agencies, the magistrate judge recommended that her IFP motion be denied and

her complaint be dismissed with prejudice. Barnes objected, arguing that she had

adequately pled her complaint and that dismissal with prejudice would violate her

due process rights.

      On September 10, 2019, the district court entered an order adopting the

magistrate judges’ report and recommendation in part but declining to dismiss the


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case with prejudice. The district court instead ordered Barnes to file an amended

complaint and a renewed IFP motion by September 24, 2019. The district court

explained that Barnes’s claims were not plausible on their face and that additional

factual allegations were needed “to push the [c]omplaint beyond mere conclusions

and into plausibility.” The court warned Barnes that “[f]ailure to timely file will

result in the closure of this action without further notice.”

      On September 23, 2019, Barnes filed an amended complaint nearly identical

to the original complaint. On September 27, 2019, the district court entered an order

acknowledging Barnes’s amended complaint and noting that, as of that date, Barnes

had failed to file a renewed IFP motion. The district court then extended the deadline

for Barnes to either file the renewed IFP motion or pay the filing fee to October 3,

2019. The court again warned Barnes that it would close the case if she did not timely

file her renewed IFP motion.

      On October 8, 2019, the district court entered an order dismissing the amended

complaint with prejudice and closing the case. The court noted that, although Barnes

had filed an amended complaint as ordered, she failed to either timely file a renewed

IFP motion or pay the filing fee. That same day, Barnes filed the renewed IFP

motion, which was signed and dated October 3, 2019. Barnes included a statement

advising the court that she had not received the court’s September 27th order until

October 4th, and that the agencies had been tampering with her mail.


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      On October 11, 2019, the district court entered another order acknowledging

that Barnes had filed her renewed IFP motion prior to entry of its dismissal order but

noting that the motion was still untimely. On that basis, the district court denied

Barnes’s renewed IFP motion. Barnes filed a notice of appeal that designated the

order entered on October 11, 2019 as the order appealed from. However, she

attached to her notice a copy of the court’s October 8, 2019 order dismissing her

amended complaint with prejudice and presented arguments challenging that order.

Barnes filed her opening brief on February 18th, 2019, to which the agencies

responded by moving for summary affirmance.

                             STANDARD OF REVIEW

      Summary disposition is appropriate where “the position of one of the parties

is clearly right as a matter of law so that there can be no substantial question as to

the outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).2

We review the dismissal of a complaint for failure to comply with a district court’s

order for abuse of discretion. Foudy v. Indian River Cnty. Sheriff’s Off., 845 F.3d

1117, 1122 (11th Cir. 2017). That discretion is especially broad here because




      2
        We are bound by cases decided by the former Fifth Circuit before October 1, 1981.
Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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Congress has given district courts a “broad grant of discretion” when managing in

forma pauperis cases. Moreland v. Wharton, 899 F.2d 1168, 1169 (11th Cir. 1990).

      Pro se pleadings are held to a less stringent standard than counseled pleadings

and, therefore, are liberally construed. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998). Nevertheless, pro se litigants are still required to conform to

procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

                                   DISCUSSION

      When an appellant fails to challenge properly on appeal one of the grounds on

which the district court based its judgment, she is deemed to have abandoned any

challenge of that ground. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680

(11th Cir. 2014). Insofar as she appeals the district court’s denial of her renewed IFP

motion, she has abandoned any argument challenging that denial by failing to raise

them in her brief.

      Barnes responds to the district court’s order dismissing her amended

complaint by making several arguments, none of which have merit. First, she argues

that by dismissing her case with prejudice the district court has deprived her of due

process. Second, she argues that her failure to timely file a renewed IFP motion was

due to the agencies’ “obstruction of justice tactics” that resulted in her untimely

receipt of the district court’s order setting the deadline for October 3rd, 2019. She

claims these tactics include tampering with her mail and hacking her computer. She


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argues that the district court abused its discretion by not considering these

extenuating circumstances and granting her additional time. We address each

argument in turn.

      First, the district court’s dismissal with prejudice did not violate Barnes’s due

process rights. Barnes was given an opportunity to object to the magistrate judge’s

recommendation that the case be dismissed with prejudice. See Vanderberg v.

Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Furthermore, rather than adopting

the report and recommendation entirely, the district court allowed Barnes an

opportunity to amend her complaint and file a renewed IFP motion. The district court

even gave Barnes an extension of time to file her renewed IFP motion after it

received only her amended complaint.

      Second, the district court did not abuse its discretion in dismissing the

amended complaint with prejudice. A district court may sua sponte dismiss a case

for failure to obey court rules and orders “based on two possible sources of authority:

Rule 41(b), or the court’s inherent power to manage its docket.” Betty K Agencies,

LTD v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005); see also Jefferson

Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526 (11th Cir.

1983) (Under Rule 41(b) a court may dismiss a case sua sponte for failure to comply

with court orders). “While dismissal is an extraordinary remedy, dismissal upon




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disregard of an order, especially where the litigant has been forewarned, generally

is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

      Here, the district court did not abuse its discretion when it dismissed Barnes’s

amended complaint for failure to timely comply with its order to file a renewed IFP

motion. First, the district court warned Barnes multiple times – both in its September

10th order partially adopting the report and recommendation and its September 27th

order extending the deadline to file a renewed IFP motion – that her failure to comply

could result in dismissal of her complaint. Second, Barnes’s contention that

extenuating circumstances prevented her from complying with the court’s order is

belied by the record. Specifically, although Barnes alleged that she did not receive

the district court’s September 27th order until October 4th, the day after the extended

deadline had run out, her renewed IFP motion was signed and dated October 3rd

(though not filed until October 8th). Moreover, that order was the second time the

district court had ordered Barnes to file a renewed IFP motion. Barnes has not

alleged that she did not receive the district court’s first order instructing her to do so,

filed on September 10th, in a timely manner. That order also required Barnes to

amend her complaint, which she did.

       Finally, dismissal with prejudice is proper in this case. Typically, dismissal

with prejudice is “plainly improper unless and until the district court finds a clear

record of delay or willful conduct and that lesser sanctions are inadequate to correct


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such conduct.” Betty K Agencies, LTD, 432 F.3d at 1339; see also Gratton v. Great

Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). The district court may make

those findings implicitly. Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006).

Here, Barnes’s unexcused delay in filing a renewed IFP motion despite twice being

ordered to do so establishes “a clear pattern of delay.” Furthermore, the magistrate

judge noted in his recommendation that this was Barnes’s third civil action against

these agencies based on the same set of “fanciful, fantastic, and delusional”

allegations. The two prior complaints were also dismissed – one for frivolousness.

These facts support a finding that lesser sanctions, including dismissal without

prejudice, would not have sufficed.

                                  CONCLUSION

      Because there is no substantial question that the district court did not abuse its

discretion by dismissing Barnes’s complaint with prejudice, the agencies’ motion

for summary affirmance is GRANTED, and the district court is AFFIRMED.

Accordingly, the motion to stay the briefing schedule is DENIED as moot.




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