             Case: 18-13184    Date Filed: 08/01/2019   Page: 1 of 7


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-13184
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 0:18-cv-61330-BB

ERIC WATKINS,

                                                             Plaintiff-Appellant,

                                     versus

OFFICER A. JOY,

                                                            Defendant-Appellee.
                         ________________________

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

                                (August 1, 2019)

Before JORDAN, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Eric Watkins, proceeding pro se, appeals the district court’s denial of his

motion for leave to proceed in forma pauperis and sua sponte dismissal of his 42
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U.S.C. § 1983 civil rights action. Mr. Watkins alleged Fourteenth Amendment Due

Process and Fourth Amendment violations by Officer A. Joy, in her individual

capacity, when she ordered him to vacate a private parking lot. Because Mr. Watkins

did not state a valid Due Process claim, we affirm in that regard. Although the

district court may have erred in failing to address Mr. Watkin’s Fourth Amendment

claim, the potential error was harmless because the facts alleged in Mr. Watkin’s

complaint do not amount to a search or seizure under the Fourth Amendment.

                                          I

      On June 16, 2014, Mr. Watkins was in a parking lot adjacent to a shopping

center. Officer Joy and two other officers from the Broward County Sheriff’s Office

(“BSO”) arrived, advised him that he was trespassing, and instructed him to leave.

Mr. Watkins told the officers they did not have authority to order him to leave

because there were no “No Trespassing” signs or signs indicating that the BSO had

authority to issue trespass warnings on the property. The officers threatened to arrest

him if he did not leave, and Mr. Watkins left.

      Mr. Watkins filed suit, arguing that Florida’s trespass statute grants Florida

citizens a due process right to not be ordered to leave property by law enforcement

officers who have no authority to do so, and that the Eleventh Circuit has recognized

a liberty interest to be on property open to the public. He also raised a Fourth

Amendment claim, asserting that Officer Joy and the other officers had stopped or


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detained him without reasonable suspicion and unreasonably seized him without

probable cause.

      Mr. Watkins moved for leave to proceed in forma pauperis, which the district

court denied, stating without elaboration that the complaint failed to allege a

plausible due process claim. The district court noted in its written order a 2015

lawsuit that Mr. Watkins had filed against City of Lauderhill police officers raising

procedural due process and equal protection claims, which also proved unsuccessful.

See Watkins v. Elmore, 589 F. App’x 524 (11th Cir. 2015). The district court did

not address Mr. Watkins’ Fourth Amendment claim.

      Mr. Watkins appeals, arguing that the district court erred in dismissing his

case “on the grounds that [he] was raising the same due process claims he allegedly

raised in a previous complaint . . . .” and for failing to consider his Fourth

Amendment claim.

                                         II

      We review the sua sponte dismissal of a complaint for failure to state a claim

under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo, accepting the allegations in the

complaint as true. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). A

district court is obligated to dismiss an in forma pauperis complaint if it determines

that the action “fails to state a claim on which relief may be granted.” §

1915(e)(2)(B)(ii). “Dismissal under § 1915(e)(2)(B)(ii) is governed by the same


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standard as a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.”

Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017). Thus, to survive

dismissal, a complaint must contain facts sufficient to support a plausible claim to

relief. See generally Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

                                            III

       Mr. Watkins’ framing of the first issue on appeal suggests that the district

court gave preclusive effect to his previous lawsuit. That is incorrect. The district

court discussed the previous lawsuit and suggested that this case “raises the same

due process claims for a similar incident,” but it expressly dismissed this action for

“fail[ure] to allege that Officer Joy deprived [Mr. Watkins] of a constitutionally

protected interest in liberty or property.” Mr. Watkins imprecisely formulated and

argued the first issue, but, construing his brief liberally, it is sufficient to appeal that

determination. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th

Cir. 2014).

       Mr. Watkins’ two lawsuits are factually and legally distinct. In Watkins v.

Elmore, officers ordered Mr. Watkins to remove his broken-down vehicle from a

city-owned property and, when he failed to comply, towed the vehicle to a public

lot. A panel of this court affirmed the dismissal of Mr. Watkins’ procedural due

process and equal protection claims. See Watkins, 589 F. App’x at 525.




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      In this case, Mr. Watkins contends that Florida’s trespass statute, Fla. Stat. §

810.08, confers on Florida citizens a due process right to not be ordered or warned

to leave private property by officers who are not authorized to do so. We find no

support in Eleventh Circuit or Florida precedent for the recognition of a substantive

due process right on this basis, and Mr. Watkins points us to none. Indeed, the

Supreme Court has repeatedly expressed its “reluctance to expand the doctrine of

substantive due process.” Chavez v. Martinez, 538 U.S. 760, 775 (2003).

      Had Mr. Watkins been arrested and charged with trespassing, and had the

BSO officers indeed had no authority under those circumstances to enforce the

trespassing statute against him, it is possible the state would not have been able to

prove a prima facie case against him. See, e.g., I.M. v. State, 95 So. 3d 918, 920

(Fla. 2d DCA 2012). But that is not what happened, and Mr. Watkins was able to

vacate the property without further incident. We decline to infer a substantive due

process right to remain on private property from Florida’s trespassing statute. Thus,

Mr. Watkins’ first claim fails.

                                          IV

      The district court may have erred in failing to address Mr. Watkin’s Fourth

Amendment claim in its order. Nevertheless, this potential error was harmless

because we conclude that Mr. Watkins has not stated a plausible claim for relief

under the Fourth Amendment. See Grant v. Seminole Cty., Fla., 817 F.2d 731, 732


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(11th Cir. 1987) (“[T]he failure of a lower court to give reasons for its disposition of

an action . . . does not necessarily preclude affirmance . . . .”).

      The Fourth Amendment guarantees the right to be free from unreasonable

searches and seizures. See U.S. Const. amend. IV. A “seizure” occurs “when the

officer, by means of physical force or show of authority, terminates or restrains [a

person’s] freedom of movement, through means intentionally applied.” Chandler v.

Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012) (alteration in

original and quotations omitted).        We ask whether, “in view of all of the

circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” Id. (quotation marks omitted). A seizure violates the

Fourth Amendment when it is unsupported by probable cause—“fact and

circumstances within the officer[’s] knowledge [that] would cause a prudent person

to believe . . . that the suspect has committed, is committing, or is about to commit

an offense.” Jordan v. Mosley, 487 F.3d 1350, 1355 (11th Cir. 2007) (quotation

marks omitted).     But there is no violation when an officer conducts a brief,

investigatory stop supported by reasonable, articulable suspicion that criminal

activity is afoot. See Terry v. Ohio, 392 U.S. 1, 21 (1968). Even when an officer

has no reasonable suspicion, she may approach and speak with citizens, as “[t]here

is nothing in the Constitution which prevents a policeman from addressing questions




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to anyone on the streets.” United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir.

2003) (quotation marks omitted).

      We accept the allegations in the complaint as true. See Alba, 517 F.3d at 1252.

Mr. Watkins alleged that the private property he was occupying lacked a “No

Trespassing” sign or a notice that the BSO had authority to issue trespass warnings.

He also alleged that “the owners of the private property did not call BSO [or]

accompany the Defendant [or] order [Mr. Watkins] to leave.” Nevertheless, Officer

Joy and another officer approached Mr. Watkins and instructed him to leave. If he

did not, they warned him, he would be arrested. “To avoid arrest[, Mr. Watkins] left

the property.”

      Because Mr. Watkins was never “seized,” by Officer Joy or anyone else, he

has not alleged a plausible claim under the Fourth Amendment. At no point was Mr.

Watkins’ movement restricted, and he was free to leave. See Chandler, 695 F.3d at

1199. See also California v. Hodari D., 499 U.S. 621, 626, 629 (1991) (holding that

a seizure requires an application of physical force or some show of authority to

which the subject yields). Accordingly, Mr. Watkins’ second claim also fails.

                                          V

      For the foregoing reasons, we affirm the district court’s order of dismissal.

      AFFIRMED.




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