            Case: 19-13683   Date Filed: 05/12/2020   Page: 1 of 9



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-13683
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:18-cv-00003-WLS



WALONA HEATH,

                                                            Plaintiff-Appellant,

                                  versus

TERRELL COUNTY SCHOOL DISTRICT,

                                                          Defendant-Appellee.

                       ________________________

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

                              (May 12, 2020)

Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
               Case: 19-13683     Date Filed: 05/12/2020    Page: 2 of 9



      Walona Heath, proceeding pro se, appeals the district court’s order

dismissing without prejudice her complaint, as supplemented, alleging a

gender-based hostile work environment claim against her former employer, the

Terrell County School District (“School District”), in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5. We affirm.

                                 I. BACKGROUND

      In 2018, Heath filed the present pro se lawsuit against her former employer,

the School District, alleging a violation of Title VII in relation to her termination.

Heath stated that the School District’s Superintendent, Robert Aaron, “issued [her]

an unfavorable decision concerning [her] employment,” which resulted in the loss

of her job and home, her “kids . . . being picked on through the school system,”

and her being unable to “attend [her] kids[’] game because of fear of the person in

question.” She sought $100,000 in damages for pain and suffering. She also

attached a decision by the Equal Employment Opportunity Commission to close

the charge she previously had filed against the School District because it was

unable to establish that the information she provided resulted in any statutory

violations.

      Heath moved for leave to proceed in forma pauperis (“IFP”), which the

district court granted. The district court, however, also reviewed Heath’s

complaint sua sponte prior to service of process. It determined that, while Heath


                                           2
               Case: 19-13683     Date Filed: 05/12/2020    Page: 3 of 9



brought her action under Title VII, she failed to explain how the School District

violated that statute because she did not state what the School District’s

“unfavorable decision” entailed or on what unlawful basis she was being

discriminated against; accordingly, the court ordered Heath to supplement the

statement of her claim in her complaint to include particular facts alleging a Title

VII violation. Heath responded by supplementing her complaint and stated that

she was discriminated against because of her gender and was retaliated against for

filing a sexual harassment complaint.

      The district court accepted Heath’s supplemental information and ordered

that the School District be served with a copy of her complaint, as supplemented.

The court also advised Heath that she was responsible for diligently prosecuting

her complaint and failure to do so could result in dismissal under Federal Rule of

Civil Procedure 41(b). The School District answered, denied liability, and asserted

certain defenses.

      Thereafter, the district court entered two orders. The first order, an initial

scheduling and discovery order, directed the parties, in relevant part, to “act

expeditiously and in good faith to complete discovery as scheduled.” The second

order, issued in October 2018, stated that Heath had sent the court a letter

concerning a dispute between her and the School District; the court advised her

that such an ex parte communication was prohibited by the court’s local rules. The


                                          3
               Case: 19-13683      Date Filed: 05/12/2020     Page: 4 of 9



court explained to Heath that she could “file any appropriate motion pursuant to

the Rules of Civil Procedure and this [c]ourt’s Local Rules,” but she had to “attach

a certificate of service to all filings; a statement of facts alone [was] not sufficient.”

      After attempting to conduct discovery, the School District moved to dismiss

Heath’s complaint; it argued that she was failing to prosecute her case by not (1)

adequately responding to its discovery requests, (2) providing it with discoverable

information, and (3) complying with the Federal Rules of Civil Procedure. The

School District also filed a memorandum of law in support of its motion. It first

contended that Heath engaged in the spoliation of electronically stored evidence,

namely text messages and phone records contained on her cellphone. According to

the School District, Heath should have preserved that evidence because it related to

her claims, she actively failed to do so, and she deprived the School District of the

use of that key evidence. Second, the School District argued that Heath failed to

comply with the court’s discovery order. It also contended that she failed to

diligently prosecute her case by refusing to produce evidence that she claimed was

in her possession and by not serving written discovery requests of her own.

      The district court provided Heath with a notification of the School District’s

motion to dismiss and informed her that failure to respond and rebut the legal

arguments that the School District set forth could result in those statements being

accepted as correct. Heath opposed the School District’s motion to dismiss and


                                            4
               Case: 19-13683    Date Filed: 05/12/2020    Page: 5 of 9



denied purposefully withholding information from the School District. The School

District replied that Heath provided no legal basis for opposing its motion, and her

complaint, as supplemented, should be dismissed.

      The district court granted the School District’s motion to dismiss. It

determined that Heath failed to prosecute her claims because she did not serve the

School District with any written discovery requests in an effort to obtain evidence

to prove her case, and she either could not locate or refused to turn over the only

piece of evidence that could support her claims. The court also determined that

Heath failed to comply with federal and local rules by not timely responding to the

School District’s requests to produce the cellphone and notebook, as required

under Federal Rule of Civil Procedure 34(b), and by disregarding the court’s local

rules prohibiting ex parte communication. Lastly, the court found that Heath failed

to comply with its scheduling and discovery order directing the parties to “act

expeditiously and in good faith to complete discovery” because she did not

produce the cellphone and notebook before discovery expired, despite her promises

to do so and the School District’s repeated efforts. The district court concluded

that “Heath clearly delayed prosecuting her case and complying with federal rules,

local rules, and [its] orders.” Thus, it dismissed her Heath’s claims without

prejudice, pursuant to Federal Rule of Civil Procedure 41(b).




                                          5
              Case: 19-13683     Date Filed: 05/12/2020   Page: 6 of 9



      The court entered a final judgment in September 2019. Heath did not

immediately appeal; instead, she moved for reconsideration a few days later.

However, before the court could rule on her motion, nine days later, Heath filed a

notice of appeal designating the final judgment for review. In an order entered on

October 8, 2019, the district court denied Heath’s motion for reconsideration

because she did not allege any intervening change in law and did not present new

evidence that necessitated reconsideration. Heath did not file a new notice of

appeal designating the denial of her motion for reconsideration.

                                 II. DISCUSSION

      On appeal, Heath argues that the district court’s dismissal was erroneous.

She does not, however, expressly challenge the district court’s determinations that

she failed to: (1) prosecute her claims; (2) comply with federal and local court

rules; and (3) comply with the court’s scheduling and discovery order.

      When appropriate, we will review a Federal Rule of Civil Procedure 41(b)

dismissal for abuse of discretion. Gratton v. Great Am. Commc’ns, 178 F.3d 1373,

1374 (11th Cir. 1999). We also liberally construe pro se pleadings. Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Nevertheless, the district court is

not required 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)




                                          6
               Case: 19-13683     Date Filed: 05/12/2020   Page: 7 of 9



(quoting GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir.

1998)).

      Moreover, issues not briefed on appeal by a pro se litigant are deemed

abandoned. Timson, 518 F.3d at 874. An issue is abandoned where the party does

not plainly and prominently raise it, or where she makes only passing references to

it in her “statement of the case” or “summary of the argument” and fails to advance

arguments or cite authority establishing that those holdings were in error. Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Additionally, an

issue is abandoned when references to it are no more than conclusory assertions or

are “mere ‘background’ to the appellant’s main arguments or when [it] is ‘buried’

within those arguments.” Id. at 682.

      Rule 41(b) provides that, “[i]f the plaintiff fails to prosecute or to comply

with [the Rules of Civil Procedure] or a court order, a defendant may move to

dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). However, a local

rule “should not serve as a basis for dismissing a pro se civil rights complaint

where . . . there is nothing to indicate plaintiff ever was made aware of [the local

rule] prior to dismissal.” Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir. 1982).

“Rule 41(b) makes clear that a trial court has discretion to impose sanctions on a

party who fails to adhere to court rules.” Zocaras v. Castro, 465 F.3d 479, 483

(11th Cir. 2006). “ While dismissal is an extraordinary remedy, dismissal upon


                                          7
               Case: 19-13683      Date Filed: 05/12/2020    Page: 8 of 9



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). Moreover, a dismissal without prejudice does not qualify as an abuse of

discretion, so long as the only prejudice to the plaintiff is the prospect of filing a

second lawsuit. Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982).

      Heath fails to challenge, on appeal, the grounds relied upon by the court in

its dismissal order, i.e., that she failed to: (1) prosecute her case, by serving the

School District with any written discovery requests, (2) comply with federal and

local rules, by timely responding to the School District’s requests to produce the

cellphone and notebook, and with the court’s rules, by avoiding ex parte

communications, and (3) comply with the court’s scheduling and discovery order.

Heath was required to properly challenge these grounds to avoid abandonment;

however, even construing her brief liberally, she fails to do so. See Sapuppo, 739

F.3d at 680. She does not raise any argument or cite any authority as to her failure

to produce evidence, her ex parte communication, or her failure to prosecute. See

id. at 681. She simply concludes that she was terminated in retaliation for

complaining of sexual harassment. See id. at 682. Similarly, she does not raise

any challenge to the denial of her motion for reconsideration. See id. Accordingly,

Heath has abandoned those grounds on appeal. See id.




                                            8
               Case: 19-13683     Date Filed: 05/12/2020    Page: 9 of 9



      Furthermore, even if Heath is deemed to have implicitly preserved

challenges in the preceding respect, the district court did not abuse its discretion in

dismissing her complaint, as supplemented. She did not serve the School District

with any written discovery requests or otherwise attempt to obtain evidence to

prove her case, and she repeatedly failed to produce the correct cellphone and

notebook, despite her promises to do so and the School District’s multiple requests.

Additionally, she failed to comply with Federal Rule of Civil Procedure 34(b) by

not timely responding to the School District’s production requests, despite

receiving an extension to do so. She similarly failed to comply with the district

court’s local rules regarding ex parte communication by sending the court a letter

alleging abuse by the School District. Lastly, she did not comply with the court’s

scheduling and discovery order to “act expeditiously and in good faith complete

discovery.” The district court warned her that a failure to respond to the School

District’s production requests and diligently prosecute her complaint could result

in dismissal, and the School District reminded her several times of her obligation

to produce the cellphone and notebook. See Moon, 863 F.2d at 837; Mitchell, 682

F.2d at 887. Thus, the district court did not abuse its discretion in dismissing her

complaint without prejudice. See Kotzen, 678 F.2d at 140.

      AFFIRMED.




                                           9
