             Case: 17-13579    Date Filed: 04/04/2018   Page: 1 of 12


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-13579
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:16-cv-03717-TWT


BURDETTE LOWE,

                                                               Plaintiff-Appellant,

                                     versus

DELTA AIR LINES INC.,

                                                             Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                 (April 4, 2018)

Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:

      Burdette Lowe, proceeding pro se on appeal, appeals the District Court’s

dismissal with prejudice of her employment discrimination claims under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and the Americans
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with Disabilities Act, 42 U.S.C. §§ 12101–12213, as well as her claims for

intentional infliction of emotional distress, breach of contract, ERISA interference,

and violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. The District

Court adopted the Magistrate Judge’s Final Report and Recommendation, which

recommended dismissal of her claims for failure to follow a court order because

she failed to timely file her Second Amended Complaint within twenty-one days of

the Magistrate Judge’s order instructing her to consolidate her two lawsuits against

Delta into one action. As an alternative ground, the Report and Recommendation

concluded that dismissal was warranted because Lowe failed to state a claim for

which relief could be granted and further found that dismissal with prejudice was

appropriate because allowing further amendment to her complaint would be futile.

She argues that her proposed Second Amended Complaint met the pleading

standard and that the Equal Employment Opportunity Commission was to blame

for causing her individual complaints to be untimely.

      We conclude that the District Court did not err in dismissing Lowe’s

complaint because Lowe failed to state a plausible claim upon which relief could

be granted, and Lowe waived any objection to the Court’s dismissal with prejudice

on the ground that further amendment would be futile. We therefore affirm the

dismissal.




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                                          I.

      The District Court adopted the Magistrate Judge’s Final Report and

Recommendation in full. The Magistrate Judge recommended dismissal with

prejudice on alternative grounds: (1) failure to follow a court order and (2) failure

to state a claim, with further amendment being futile. To the extent the District

Court dismissed Lowe’s complaint with prejudice for failure to follow a court

order, the Court erred. Nevertheless, any error in this regard was harmless.

Lowe’s complaint failed to state a claim and she waived any objection to the

District Court’s dismissal of her complaint with prejudice on the ground that

permitting further amendment would be futile. We address these issues in turn.

                 a. Dismissal for Failure to Follow a Court Order

      We review the dismissal of an action for failure to follow a court order for

abuse of discretion. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). A

district court is permitted to sua sponte dismiss an action under Federal Rule of

Civil Procedure 41(b) for failure to comply with a court order. See Lopez v.

Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) (explicitly

addressing the district court’s sua sponte authority, in spite of the language of Fed.

R. Civ. P. 41(b) that references an involuntary dismissal only on motion of the

defendant). The Northern District of Georgia’s local rules specifically permit a

court to sua sponte dismiss a case when a plaintiff or plaintiff’s attorney has


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refused to obey a lawful court order. LR 41.3A(2), NDGa. Under certain

circumstances, failure to comply with a court order is grounds for dismissal with

prejudice. LR 41.3B, NDGa.; Fed. R. Civ. P. 41(b); see Slack v. McDaniel, 529

U.S. 473, 489, 120 S. Ct. 1595, 1606 (2000) (holding, in a case brought for habeas

corpus relief, that “failure to comply with an order of the court is grounds for

dismissal with prejudice”).

      However, dismissals with prejudice are drastic remedies that are to be used

only where a lesser sanction would not better serve the interests of justice. Justice

v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993). Thus, dismissals with

prejudice are inappropriate unless the district court finds both that a clear record of

delay or willful misconduct exists and that lesser sanctions are inadequate to

correct such conduct. Zocaras, 465 F.3d at 483. When a litigant has been

forewarned of the consequences of not following a court order and proceeds to

disregard it, the district court generally will not have abused its discretion by

dismissing the action. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).

      Here, while the Federal Rules of Civil Procedure and the Northern District

of Georgia’s local rules both permit sua sponte dismissal of a case for failure to

adhere to a lawful court order, our precedent makes clear that dismissals with

prejudice are warranted only under narrow circumstances, and that a litigant should

be apprised of the consequences of failing to heed the district court’s directives.


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The record in this case does not clearly evince intentional delay or willful

misconduct on Lowe’s part. Lowe stated that she mistakenly believed, because of

her misinterpretation of the governing legal rules and her interpretation of the

deadlines on PACER, that she had twenty-one days from receipt of the Court’s

order to file her Second Amended Complaint, and that she was allotted three

additional days to allow for receipt by mail. Although the Magistrate Judge’s

order was clear as to the deadline, there is no indication that Lowe intentionally

disregarded it. And though she did so after the deadline had already passed, Lowe

filed a request for an extension of time within the mistaken timeframe she believed

to be applicable, which further suggests that Lowe’s failure to file her amended

complaint on time was not willful. In short, the record suggests negligence, not

willful misconduct, on Lowe’s part in filing her amended complaint after the

twenty-one day deadline. Under our precedent, mere negligence is not a proper

basis for dismissal with prejudice. Further, the Magistrate Judge’s order

instructing Lowe to file a new complaint did not inform her that dismissal with

prejudice would result if she failed to file her complaint on time.

      Thus, the District Court erred to the extent it relied on Lowe’s failure to

follow the Magistrate Judge’s order as a proper basis for dismissal with prejudice.

However, any error in this regard was harmless, because the Magistrate Judge (and




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the District Court, in adopting the Final Report and Recommendation) correctly

found that Lowe failed to state a plausible claim for relief.

                      b. Dismissal for Failure to State a Claim

      We review a district court’s ruling on a Fed. R. Civ. P. 12(b)(6) motion to

dismiss de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Pro se

pleadings are to be construed liberally. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,

1253 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017). However, liberal

construction of pro se pleadings “does not give a court license to serve as de facto

counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain

an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir.

2014) (quotation omitted). We view a complaint in the light most favorable to the

plaintiff and accept all of the plaintiff’s well-pleaded facts as true. Am. United Life

Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).

      In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff “does not

need detailed factual allegations,” but must provide grounds for an entitlement to

relief that constitute more “than labels and conclusions” or “a formulaic recitation

of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 127 S. Ct. 1955, 1959 (2007). “Factual allegations must be enough to raise a

right to relief above the speculative level.” Id. A complaint must contain

“enough facts to state a claim to relief that is plausible on its face.” Brooks v.


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Warden, 800 F.3d 1295, 1300 (11th Cir. 2015) (quotation omitted). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (quotation omitted). We have stated that “conclusory allegations,

unwarranted deductions of facts or legal conclusions masquerading as facts will

not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188

(11th Cir. 2002).

       Here, the District Court did not err in concluding that Lowe failed to state a

plausible claim for relief. As the Magistrate Judge observed, Lowe’s complaint

contained multiple deficiencies, including timeliness problems with her failure-to-

accommodate claims and her retaliation claims. 1 Her Rehabilitation Act claim

could not succeed because the Rehabilitation Act does not contain a standalone

private right of action. Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1078 (5th Cir.

1980). And, in any event, both Lowe’s Amended Complaint and Second Amended

Complaint were difficult to decipher and lacked the specificity required to survive

a motion to dismiss pursuant to Rule 12(b)(6).

       1
         In his order instructing Lowe to refile a consolidated second amended complaint, the
Magistrate Judge warned Lowe that if she failed to adhere to his order and file an amended
complaint within twenty-one days, he would review only the merits of her First Amended
Complaint and the claims therein when considering Delta’s motion to dismiss under Rule
12(b)(6). Nevertheless, in his Final Report and Recommendation, the Magistrate Judge reviewed
the merits of both Lowe’s proposed Second Amended Complaint and her First Amended
Complaint and found that both contained the same deficiencies. Hence, while in this opinion we
discuss primarily the Magistrate Judge’s review of Lowe’s Second Amended Complaint, we
conclude that his review and dismissal of her First Amended Complaint was correct as well.
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      Lowe’s Second Amended Complaint was a typical “shotgun pleading,” a

complaint in which “each count incorporated by reference all preceding paragraphs

and counts of the complaint notwithstanding that many of the facts alleged were

not material to the claim, or cause of action, appearing in a count’s heading.”

Thompson v. RelationServe Media, Inc., 610 F.3d 628, 650 n.22 (11th Cir. 2010)

(Tjoflat, J., concurring in part and dissenting in part). Her seventy-six page

complaint set forth sixteen different causes of action, many duplicative and

overlapping, and it is not clear from the complaint exactly which of her various

factual allegations comprise her numerous claims for relief. Although courts are to

liberally construe pro se pleadings, as the Magistrate Judge did in analyzing

Lowe’s claim in his Report and Recommendation, they are not required “to rewrite

an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v.

Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other

grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). Here, the

District Court would have to spend many hours sorting, separating, and matching

up the various factual allegations and claims, and would have to attempt a full-

scale rewrite of Lowe’s complaint in order to glean some cognizable basis for

relief from it. Delta would have to do the same in an attempt to respond to its

allegations.




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       In addition to its unmanageability, Lowe’s complaint lacked specificity. As

the Magistrate Judge observed, Lowe’s allegations were generalized and

conclusory throughout her complaint. While we do not here discuss the Magistrate

Judge’s thorough review of every claim, several examples are illustrative. For one,

Lowe’s ERISA Interference count alleged in a conclusory manner that Delta’s

changing of her leave status from “NWA Disability Medical Leave” to

“Approved/Unapproved Medical Leave of Absence” was “without merit” and

interfered with her “rights to ERISA benefits including and not limited to dental,

medical, vision, and other unknown retiree benefits.” But Lowe never specified

those benefits in any detail, alleged that she previously received them, or specified

why Delta’s classification of her leave status was “without merit” or otherwise

improper.2




       2
          In analyzing the sufficiency of Lowe’s ERISA interference and ADA discrimination
claims, the Magistrate Judge applied the test used to measure whether a plaintiff has made out a
prima facie discrimination case as set forth by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). This standard should not have been invoked.
The Supreme Court and this Court have explained on numerous occasions that the McDonnell
Douglas burden-shifting framework is an evidentiary standard, not a pleading standard, and is
applicable at summary judgment rather than the pleading stage. See, e.g., Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510, 122 S. Ct. 992, 997 (2002); Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1246 (11th Cir. 2015) (per curiam). Thus, a plaintiff does not need to satisfy the
McDonnell Douglas standard to plead a plausible discrimination claim. Id. at 511, 122 S. Ct. at
997; Surtain, 789 F.3d at 1246. Nevertheless, an employment discrimination complaint must
still provide enough factual matter to plausibly suggest intentional discrimination. Surtain, 789
F.3d at 1246. Here, our de novo review of Lowe’s complaint reveals that her claims lack the
specificity necessary to make out a plausible discrimination claim. Therefore, the Magistrate
Judge’s application of the McDonnell Douglas framework was harmless.
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      As to her harassment claims, which overlapped repeatedly with her various

ADA claims throughout her complaint, Lowe alleged that Delta created “a

pathological deceptive work/return-to-work environment [that] was hostile. No

one is comfortable around people who are constantly lying.” However, she never

gave any specifics as to what Delta did to create such an environment other than

offering settlements to her, which, in Lowe’s view, were harassing because they

required her to waive her rights to sue Delta under the ADA or Title VII of the

Civil Rights Act, and refusing to allow her physician to attend settlement

negotiations with her. This is not enough to set forth a plausible claim. To

successfully make out a harassment claim, a plaintiff must show that her workplace

was “permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of [her] employment and

create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,

21, 114 S. Ct. 367, 370 (1993) (quotations and citations omitted). As the

Magistrate Judge observed, however, Lowe

      alleges that [Delta] met with [Lowe] on multiple times, permitted her
      to look into and apply for available vacancies (which she did not do),
      and permitted her reasonable extensions in light of the death of her
      physician, Dr. Orme. That [Delta] did not provide the one
      accommodation Plaintiff requested, or allow Dr. Orme to be
      physically present in meetings, or provide an even greater extension,
      is not ‘harassment.’” Lowe further alleges that Delta’s settlement
      offers, which included releases from all potential ERISA and ADA
      claims, constituted harassment. However, the act of making a


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      settlement offer does not constitute harassment, and a litigant can
      offer whatever settlement terms it wants.

      With respect to her various retaliation claims, Lowe alleged that Delta

changed her termination code from “retired” to “resigned” in its internal employee

classification system to retaliate against her for bringing her claims. However,

Lowe attached, as an exhibit to her complaint, a letter from a Delta employee to

her former attorney explaining that Lowe was not old enough to retire and did not

possess the minimum number of years of service to be eligible for the retirement

benefits she sought. Lowe did not allege if or how she was or would have been

eligible for those benefits had Delta not changed her classification code.

      In sum, the Magistrate Judge conducted a thorough analysis of Lowe’s

sixteen claims and determined correctly that she failed to state a plausible claim for

relief, even under a liberal reading of her complaint. The District Court

accordingly did not err in adopting the Magistrate Judge’s recommendation to

dismiss Lowe’s action.

      As to whether the District Court erred by dismissing her complaint with

prejudice, Lowe did not raise or discuss the issue in her brief. She has thus waived

the issue. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam)

(“While we read briefs filed by pro se litigants liberally, issues not briefed on

appeal by a pro se litigant are deemed abandoned.” (citations omitted)); see also

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (“To
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obtain reversal of a district court judgment that is based on multiple, independent

grounds, an appellant must convince us that every stated ground for the judgment

against him is incorrect. When an appellant fails to challenge properly on appeal

one of the grounds on which the district court based its judgment, he is deemed to

have abandoned any challenge of that ground, and it follows that the judgment is

due to be affirmed.”).

      AFFIRMED.




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