           Case: 14-10922   Date Filed: 09/08/2014   Page: 1 of 7


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10922
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-21884-WJZ



CRYSTAL MORGAN,

                                                           Plaintiff-Appellant,

                                    versus

BRUCE CHRISTENSEN,

                                                          Defendant-Appellee.

                       ________________________

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

                            (September 8, 2014)

Before HULL, MARCUS, and MARTIN, Circuit Judges.
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PER CURIAM:

       Crystal Morgan, proceeding pro se, filed suit in the District of Colorado

alleging that she was assaulted in Florida. In this appeal she argues that the

District of Colorado erred by transferring her case to the Southern District of

Florida. She also argues that the Southern District of Florida erred by declining to

exercise supplemental jurisdiction over her state law claims and by dismissing her

Americans with Disability Act (ADA) claims. 1 After careful review of the record

and consideration of the parties’ briefs, we dismiss in part and affirm in part.

                                                I.

       Morgan argues that the District of Colorado erred by transferring her claims

to the Southern District of Florida. We lack jurisdiction to review the decision of a

district court in another circuit. Murray v. Scott, 253 F.3d 1308, 1314 (11th Cir.

2001). As Morgan concedes, the proper avenue for review was a petition for

mandamus in the Tenth Circuit seeking to enjoin the transfer. Id. We therefore

dismiss Morgan’s appeal to the extent that it seeks review of the District of

Colorado’s transfer order.




1
  Morgan refers to the dismissal of her 42 U.S.C. § 1983 claim for the first time in her reply
brief. Therefore, that issue is abandoned. United States v. Jernigan, 341 F.3d 1273, 1283 n.8
(11th Cir. 2003).
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                                          II.

      We review a district court’s refusal to exercise supplemental jurisdiction

over state law claims for abuse of discretion. Myers v. Cent. Fla. Invs., Inc., 592

F.3d 1201, 1211 (11th Cir. 2010). The district court is in the best position to weigh

the competing interests set forth in 28 U.S.C. § 1367 and decide whether it is

appropriate to exercise supplemental jurisdiction. Lucero v. Trosch, 121 F.3d 591,

598 (11th Cir. 1997). A district court may decline to exercise supplemental

jurisdiction over a state claim if it “substantially predominates over the claim or

claims over which the district court has original jurisdiction.” 28 U.S.C.

§ 1367(c)(2). Substantial predominance exists “when it appears that a state claim

constitutes the real body of a case, to which the federal claim is only an

appendage.” Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 744 (11th Cir.

2006) (quotation marks omitted).

      Here, the district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Morgan’s state law claims. Morgan’s lawsuit stems

from an alleged physical assault by Bruce Christensen that took place in a Florida

state courtroom. Deciding this claim would require the district court to apply

Florida tort law for assault, negligence, and intentional infliction of emotional

distress, as opposed to federal law. Morgan’s federal claims, made pursuant to the

ADA, are an appendage to her state tort claims, which substantially predominate in


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this matter. See Parker, 468 F.3d at 744. Given the deference afforded to a district

court concerning its exercise of supplemental jurisdiction, the district court here

did not abuse its discretion by dismissing Morgan’s state claims. See Lucero, 121

F.3d at 598. We therefore affirm this part of the appeal.

                                           III.

      We review de novo a grant of a motion to dismiss for failure to state a claim,

“accepting the allegations in the complaint as true and construing them in the light

most favorable to the plaintiff.” Spain v. Brown & Williamson Tobacco Corp.,

363 F.3d 1183, 1187 (11th Cir. 2004) (quotation marks omitted). In reviewing a

motion to dismiss, we must determine whether the pleadings 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). A claim is facially plausible when the court can “draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. A plaintiff’s factual allegations must be enough to raise a right to relief above

the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

1955, 1965 (2007). We construe a pro se litigant’s pleadings liberally. Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

      The district court did not err by dismissing Morgan’s Title II ADA claim.

Title II of the ADA states that “no qualified individual with a disability shall, by


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reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. “Only public entities are

liable for violations of Title II of the ADA.” Edison v. Douberly, 604 F.3d 1307,

1308 (11th Cir. 2010). Title II defines “public entity” to mean “any department,

agency, special purpose district, or other instrumentality of a State or States or

local government.” 42 U.S.C. § 12131(1)(B). An “instrumentality of a State” is a

governmental unit, not a private actor or entity. Edison, 604 F.3d at 1310. Even if

a private actor or entity contracts with a government entity to perform government

functions, it does not qualify as a “public entity” for the purposes of Title II

liability. Id. While Morgan argues that Christensen is an instrumentality of the

state because he is “an officer of the court,” this is insufficient to state a Title II

ADA claim because Christensen, a private attorney, is not a “public entity” within

the meaning of 42 U.S.C. § 12132. Edison, 604 F.3d at 1308–10.

       The district court did not err by dismissing Morgan’s Title III ADA claim.

Title III of the ADA provides that “[n]o individual shall be discriminated against

on the basis of disability” in “any place of public accommodation by any person

who owns, leases (or leases to), or operates a place of public accommodation.” 42

U.S.C. § 12182(a). Title III is meant to prevent owners of public places of

accommodation from creating barriers that would restrict a disabled person’s


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ability to enjoy the defendant entity’s goods, services, and privileges. See Rendon

v. Valleycrest Prods., 294 F.3d 1279, 1283 (11th Cir. 2002). Morgan did not state

a Title III ADA claim because the amended complaint does not allege that

Christensen leased, owned, or operated a place of public accommodation. 42

U.S.C. § 12182(a). Rather, all of the relevant events occurred exclusively in a

Miami-Dade County courtroom, which was not leased, owned, or operated by

Christensen.

      Finally, the district court did not err by dismissing Morgan’s Title V ADA

claim. Title V, the ADA’s general anti-retaliation provision, prohibits

discrimination against a person because she “opposed any act or practice made

unlawful by [the ADA] or because [she] made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding or hearing” conducted

under the statute. 42 U.S.C. § 12203(a). Title V establishes individual liability for

a violation of its prohibitions where the act or practice opposed is one made

unlawful by Title II the ADA. Shotz v. City of Plantation, 344 F.3d 1161, 1164

(11th Cir. 2003). To establish a prima facie case of non-employment related

retaliation under the ADA, a plaintiff must show that (1) she engaged in statutorily

protected expression; (2) she suffered an adverse action; and (3) the adverse action

was causally related to the protected expression. Higdon v. Jackson, 393 F.3d

1211, 1219 (11th Cir. 2004). To establish that she engaged in statutorily protected


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expression, a plaintiff must show that she had a subjective belief that the defendant

was engaged in unlawful practices, and that belief must be objectively reasonable.

See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002) (stating

this principle in the employment context).

      Morgan did not state a retaliation claim under Title V of the ADA. Even

liberally construed, the amended complaint does not demonstrate how Christensen

engaged in any act or practice made unlawful by the ADA. Neither does the

amended complaint allege how Morgan opposed an unlawful act, or how her

opposition resulted in adverse consequences. And Morgan was not attempting to

exercise a right protected by the ADA, or assisting anyone in their attempt to

exercise a right protected by the ADA. As a result, the district court properly

dismissed Morgan’s ADA claims and we affirm this part of the appeal. Bell Atl.

Corp., 550 U.S. at 555, 127 S. Ct. at 1965; see also Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (per curiam) (noting this Court can

affirm on any ground that finds support in the record).

      DISMISSED IN PART, AFFIRMED IN PART.




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