                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                           FILED
                          ________________________                 U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                 No. 04-15452                            JUNE 17, 2005
                                                                      THOMAS K. KAHN
                             Non-Argument Calendar
                                                                           CLERK
                           ________________________

                      D.C. Docket No. 04-02311-CV-RWS-1


ARTHUR O. ARMSTRONG,

                                                     Plaintiff-Appellant,
      versus

PHILLIP E. FRIDUSS,
JACKIE DUNN, et al.,
                                                     Defendants-Appellees,

                          __________________________

                Appeal from the United States District Court for the
                           Northern District of Georgia
                          _________________________
                                 (June 17, 2005)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:


      Plaintiff-Appellant Arthur O. Armstrong appeals pro se the district court’s

denial of his motion for leave to file a civil action, pursuant to 42 U.S.C. § 1983,
against Lieutenant Jackie Dunn and Tony Lucas of the Conyers Police

Department, and their attorney, Phillip E. Friduss. Armstrong argues on appeal

that the court committed reversible error in denying him such leave. For the

reasons set forth more fully below, we affirm.

       Armstrong attached to his pro se motion for leave to file a civil action his

proposed § 1983 complaint, in which he asserted that Dunn, Lucas, and Friduss

had “conspired” against him and committed perjury, or had concealed a material

fact under circumstances requiring disclosure, by stating that Armstrong

“maintained no driver’s license” on July 5, 2002. Armstrong also contended in

this proposed complaint that, as a direct and proximate result of the defendants’

acts, he had suffered “continuing injuries, including but not limited to: mental

distress, mental anguish, psychic (sp.) injury, injury to his reputation and

humiliation.” Armstrong sought as relief compensatory and punitive damages in

the amount of $100,000,000, costs, and attorneys fees.1

       In addition to his proposed complaint, Armstrong attached to his motion a

copy of an order entered by the same district court on March 4, 2004 (“March

Order”), in another civil action, No. 1:02-CV-2629-RWS. The court discussed in



       1
          Armstrong also attached to his motion for leave to file a complaint a “motion for
judgment,” in which Armstrong sought “judgment in his favor,” based on the same facts alleged
in his proposed complaint.
                                              2
its March Order that Armstrong had filed motions (1) to reopen his civil action,

(2) to amend his pleading, (3) for relief, (4) for permission to file the instant

action, (5) for judgment under Rule 60(b), and (6) to proceed in forma pauperis

(“IFP”). The court also noted that it had granted the defendants’ motion for

summary judgment in the original civil action, and that we had affirmed that

decision.2 Based on its determination that Armstrong’s pending motions were

attempts to re-litigate issues it already had decided, the court concluded that the

motions were frivolous and denied them.

       The court also discussed in its March Order that its review of Armstrong’s

prior litigation had revealed “a consistent pattern of frivolous filings.” Citing to

our decision in Procup v. Strickland, 792 F.2d 1069, 1073-74 (11th Cir. 1986), the

district court concluded that it had to “enjoin [Armstrong] from making future

filings in this case to protect the [c]ourt’s jurisdiction.” The court, therefore,

(1) ordered Armstrong to seek leave from it before filing either a new action, or

additional material in a previous civil action; and (2) directed the Clerk not to

docket any new filings absent an order from the court granting such leave. The

court also directed Armstrong to attach to any motion seeking the court’s leave



       2
          In an unpublished decision, we affirmed the district court’s grant of summary judgment
on December 1, 2003. See Armstrong v. City of Conyers, No. 03-13509-AA (11th Cir. 2003)
(unpub.).
                                               3
copies of (1) his proposed pleading, and (2) the court’s March Order.

       Although the district court found that Armstrong’s motion seeking leave

complied with the requirements set forth in its March Order, the court denied this

motion. In doing so, the court discussed that, in Case No. 1:02-CV-2629-RWS,

Armstrong had alleged that his due process rights had been violated on July 5,

2002, when police officers with the Conyers Police Department had (1) taken his

suspended driver’s license following a traffic stop, and (2) informed his daughter

that his license had been revoked by the State of North Carolina. The court also

noted that it had determined that Armstrong’s rights were not violated because

(1) Armstrong’s driver’s license had indeed been revoked, and (2) the information

that the officers had given Armstrong’s daughter had been true. The court

determined that Armstrong’s allegations in the instant motion “concern[ed] the

same series of events and legal theories as his prior action in [the district court].”

The court, therefore, concluded that it was precluded by the doctrine of res

judicata from addressing Armstrong’s claims in the instant action, that

Armstrong’s motion should be denied, and that the case should be closed.3


       3
           The doctrine of res judicata, or claim preclusion, “will bar a subsequent action if:
(1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final
judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present
causes of action are the same.” See Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th
Cir. 2003) (quotation omitted). “[T]his bar pertains not only to claims that were raise in the prior
action, [] but also to claims that could have been raise previously.” See id. (citation omitted).
                                                 4
       Following the court’s entry of this order denying Armstrong leave to file a

complaint, Armstrong filed a motion for leave to proceed IFP, and a motion for

leave to file a document. The court, thereafter, denied these motions as moot.4

Moreover, we denied Armstrong’s motion for leave to proceed IFP, based on our

determination that the appeal was frivolous.

       Armstrong argues on appeal that the district court erred in failing to sua

sponte grant him leave to amend this complaint, because he could have corrected

its alleged deficiencies. Conceding that the court correctly determined that he

could not proceed under § 1983, Armstrong contends that, based on the facts he

alleged in his proposed complaint, he was entitled to relief under 42 U.S.C.

§§ 1985 and 1986. Because the defendants were not served in this action, no

response brief has been filed.

       As a preliminary matter, to the extent Armstrong’s appeal may be construed

as a challenge to the district court’s March Order, which enjoined him from filing

certain pleadings without first obtaining the court’s permission, this challenge is

without merit. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998) (“Pro se pleadings are held to a less stringent standard than pleadings

       4
          Because Armstrong has not challenged these decisions in his appeal brief, we conclude
that he has abandoned any arguments on them. See Access Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (“a party seeking to raise a claim or issue on appeal must
plainly and prominently so indicate. Otherwise, the issue—even if properly preserved at
trial—will be considered abandoned”).
                                               5
drafted by attorneys and will, therefore, be liberally construed”). Under the All

Writs Act, “[t]he Supreme Court and all courts established by an Act of Congress

may issue all writs necessary or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. A court’s

power to protect its jurisdiction under this Act includes:

      the power to enjoin a dissatisfied party bent on re-litigating claims
      that were (or could have been) previously litigated before the court
      from filing in both judicial and non-judicial forums, as long as the
      injunction does not completely foreclose a litigant from any access to
      the courts.

Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1295 n.15 (11th Cir. 2002) (citing

Procup, 792 F.2d at 1079); see also Klay v. United Healthgroup, Inc., 376 F.3d

1092, 1099-1102 (11th Cir. 2004) (discussing in detail the All Writs Act).

Because the court’s March Order was issued in response to Armstrong’s “litigious

history,” and because this order did not completely foreclose Armstrong from

accessing the courts, the court had authority under the All Writs Act to issue it.

      Furthermore, to the extent Armstrong is arguing for the first time on appeal

that the district court erred in not sua sponte granting him leave to amend his

proposed complaint, “if the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief,” leave to amend “should be freely

given,” pursuant to Fed.R.Civ.P. 15(a). Hall v. United Ins. Co. of America, 367


                                          6
F.3d 1255,1262 (11th Cir. 2004) (quotation omitted). Armstrong, however, failed

to raise this argument in the district court. See Access Now, 385 F.3d at 1331 (“an

issue not raised in the district court and raised for the first time in an appeal will

not be considered by this [C]ourt”). Moreover, we have determined, at least when

a party is proceeding with counsel, that “[a] district court is not required to grant a

plaintiff leave to amend his complaint sua sponte when the plaintiff . . . never filed

a motion to amend nor requested leave to amend before the district court.” See

Wagner v. Daewoo Heavy Industries America Corp., 314 F.3d 541, 542 (11th Cir.

2002) (en banc).

      Regardless, even if Armstrong had properly preserved this argument, and

even if we were to conclude that our decision in Wagner should not be extended to

pro se plaintiffs, “denial of leave to amend is justified by futility when the

complaint as amended is still subject to dismissal.” Hall, 367 F.3d at 1263

(quotation omitted). “All well-pleaded facts in plaintiff’s complaint and all

reasonable inferences drawn from those facts are taken as true.” McGinley v.

Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) (quotation omitted). A complaint

is subject to dismissal under Fed.R.Civ.P. 12(b)(6), however, when the plaintiff

“can prove no set of facts in support of his claim which would entitle him to

relief,” or “when its allegations–on their face–show that an affirmative defense


                                           7
bars recovery on the claim.” Marsh v. Butler County, Ala., 268 F.3d 1014, 1022

(11th Cir. 2001) (en banc) (citations and quotations omitted).

       Armstrong has asserted summarily on appeal that the facts he alleged in his

proposed complaint also supported claims under § 1985 and § 1986. “Section

1985 provides a vehicle to redress conspiracies to interfere with civil rights.”

Farese v. Scherer, 342 F.3d 1223, 1230 (11th Cir. 2003). The elements of a cause

of action under § 1985(3)— the subdivision of § 1985 arguably at issue here—are

“(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal

privileges and immunities under the law; and (3) an act in furtherance of the

conspiracy; (4) whereby a person is either injured in his person or property or

deprived of any right or privilege of a citizen of the United States.”5 Denney v.

City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001) (quotation omitted).

Moreover, § 1986 provides a cause of action against anyone who has “knowledge

that any of the wrongs conspired to be done, and mentioned in [§ 1985] are about

to be committed, and having the power to prevent or aid in preventing the

commission of the same, neglects or refuses to do so.” Park v. City of Atlanta,


       5
         To the extent it arguably is applicable, § 1985(2) provides a cause of action “to victims
of conspiracies intended to injury or deter ‘any party or witness in any court . . . from attending
such court, or from testifying to any matter pending therein.’” See Farese, 342 F.3d at 1230
(quoting 42 U.S.C. § 1985(2)).
                                                 8
120 F.3d 1157, 1159 (11th Cir. 1997) (quoting 42 U.S.C. § 1986).

       However, even assuming for purposes of argument that Armstrong asserted

facts supporting all of the necessary elements of these actions, “as long as an

attorney’s conduct falls within the scope of the representation of his client, such

conduct is immune from an allegation of a § 1985 conspiracy.” Farese, 342 F.3d

at 1232. In Farese, we determined that, although the plaintiff alleged that a

defendant and his attorney engaged in conspiratorial conduct in violation of

§ 1985, the attorneys did not engage in any conduct that was outside the scope of

their representation. Id. We, therefore, concluded that the attorney-client

relationship was not “susceptible to characterization as a conspiracy under

§ 1985,” and that the district court’s dismissal of the claims was not erroneous.6

Id. We also concluded the district court properly dismissed the plaintiff’s § 1986

claims because they were derivative of his § 1985 claims. Id. at 1232 n.12.

       In seeking leave to file his proposed complaint, Armstrong generally

asserted that police officers with the Conyers Police Department and Friduss, their

attorney, “conspired” against him and committed perjury, or concealed a material

fact under circumstances requiring disclosure, by stating, presumably during a

       6
          In reaching this conclusion, we clarified that, because “there are important differences
between the agency relationships involved in private corporate activities and those arising in the
practice of law,” its decision in Farese left “untouched [its] cases dealing with the pure intra-
corporate doctrine and criminal-conspiracy exception applicable to corporate agents.” See
Farese, 342 F.3d at 1232 n.10.
                                                 9
court proceeding, that Armstrong “maintained no driver’s license” on July 5, 2002.

In making this assertion, Armstrong failed to contend that Friduss was engaging in

conduct that was outside the scope of his representation of the officers. Thus,

similar to the facts in Farese, the defendants’ attorney-client relationship was not

“susceptible to characterization as a conspiracy under § 1985.” See id. at 1232.

      Moreover, although the district court did not discuss whether Armstrong

failed to state a claim in his proposed complaint, and, instead, dismissed the

complaint based on the doctrine of res judicata, we may affirm a decision of the

district court “on any adequate ground, even if it is other than the one on which the

court actually relied.” See Fisherman Against Destruction of Environment, Inc. v.

Closter Farms, Inc., 300 F.3d 1294, 1296-97 (11th Cir. 2002) (citation and

quotation omitted).

      Accordingly, we conclude that the district court did not commit reversible

error in denying Armstrong leave to file a civil action. We, therefore, affirm.

      AFFIRMED.




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