           Case: 14-11295   Date Filed: 04/06/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11295
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 9:11-cv-80949-DMM



PAULINE MOODY,

                                                           Plaintiff-Appellant,

                                 versus

CITY OF DELRAY BEACH,
DELRAY BEACH POLICE DEPARTMENT,
STATE OF FLORIDA,

                                                        Defendants-Appellees.

                      ________________________

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

                             (April 6, 2015)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
               Case: 14-11295        Date Filed: 04/06/2015   Page: 2 of 6


      Pauline Moody, proceeding pro se, appeals the district court’s dismissal of

her 42 U.S.C. § 1983 civil rights complaint against the City of Delray Beach and

the State of Florida. Liberally construing her brief on appeal, Moody states that

the district court erred in dismissing her complaint and denying her request to file a

third amended complaint. She argues that she stated a claim under § 1983 arising

from her 2011 arrest, detention, psychiatric hold, and prosecution. She claims that

she should have been allowed to amend her complaint for a third time in order to

properly allege a policy or custom of the City of Delray Beach that led to the

violation of her constitutional rights. Upon review of the record and consideration

of the parties’ briefs, we affirm.

                 I.     DISMISSAL OF MOODY’S § 1983 CLAIMS

      Moody first challenges the district court’s dismissal of her two § 1983

claims. “We review de novo the district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, accepting the

factual allegations in the complaint as true and construing them in the light most

favorable to the plaintiff.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th

Cir. 2006) (per curiam). To state a claim, “a plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964–65 (2007) (alteration


                                             2
                Case: 14-11295     Date Filed: 04/06/2015     Page: 3 of 6


adopted) (quotation omitted). “[A] complaint must 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

omitted). Though we liberally construe pro se filings, Alba v. Montford, 517 F.3d

1249, 1252 (11th Cir. 2008), we do not “rewrite an otherwise deficient pleading in

order to sustain an action.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168–69

(11th Cir. 2014) (quotation omitted).

                A.     CLAIM AGAINST THE STATE OF FLORIDA

      The district court did not err in dismissing Moody’s complaint against the

State of Florida for failure to state a claim. “[T]o prevail on a civil rights action

under § 1983, a plaintiff must show that [she] was deprived of a federal right by a

person acting under color of state law.” Griffin v. City of Opa-Locka, 261 F.3d

1295, 1303 (11th Cir. 2001). A state is not a person for purposes of § 1983. Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989).

Thus, Moody’s claims against the State of Florida were properly dismissed.

           B.        CLAIM AGAINST THE CITY OF DELRAY BEACH

      Moody next challenges the district court’s dismissal of her § 1983 claim

against the City of Delray Beach for failure to state a claim. Unlike the State of

Florida, the City of Delray Beach is a local government entity which we consider a

“person” for purposes of § 1983. See McDowell v. Brown, 392 F.3d 1283, 1289


                                            3
               Case: 14-11295     Date Filed: 04/06/2015    Page: 4 of 6


(11th Cir. 2004). “[T]o impose § 1983 liability on a municipality, a plaintiff must

show: (1) that his constitutional rights were violated; (2) that the municipality had

a custom or policy that constituted deliberate indifference to that constitutional

right; and (3) that the policy or custom caused the violation.” Id. To establish a

policy or custom, a plaintiff must show a “persistent and wide-spread practice.”

See id. at 1290 (quotation omitted). However, a theory of respondeat superior will

not establish a municipality’s liability. Id. at 1289.

      Moody’s complaint was properly dismissed because she failed to allege a

city policy or custom that caused some violation of her constitutional rights.

Instead, she attempts to rely on respondeat superior to establish the city’s liability

by alleging that the city allowed her to be harmed by various police officers,

doctors, and attorneys. Moody’s second amended complaint (titled “Definite

Statement and Complaint”) asserts that the City of Delray Beach “went right

along” with Moody’s 2007 arrest and “allow[ed] its [police department]

employee(s) . . . to violate their municipal policy and custom contract.” She also

highlights that the City of Delray Beach “never made one attempt to get [Moody]

out of the Psychiatric Forensic Hospital,” “allowed [Moody’s] mental state of mind

to be tortured” through forced medication, “allowed [Moody] to be put through

another arrest” by a Delray Beach police officer, and “allowed [Moody] to be held

against her will for 238 days” in jail and at the mental hospital. These allegations


                                           4
              Case: 14-11295     Date Filed: 04/06/2015    Page: 5 of 6


make no mention of any unconstitutional custom or policy of the City of Delray

Beach. Because Moody cannot rely upon respondeat superior to impose vicarious

liability on the City of Delray Beach for the actions of its employees, the district

court properly dismissed Moody’s § 1983 complaint.

              II.    DENIAL OF MOODY’S MOTION TO AMEND

      Finally, Moody challenges the district court’s refusal to grant her a third

opportunity to amend her complaint. We review a district court’s denial of a

motion to amend a complaint for an abuse of discretion. Coventry First, LLC v.

McCarty, 605 F.3d 865, 869 (11th Cir. 2010) (per curiam). However, “we review

de novo a decision that a particular amendment to the complaint would be futile.”

Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam). Federal

Rule of Civil Procedure 15 sets conditions within which a plaintiff may amend her

complaint once, as a matter of course. However, later amendments may be done

only with the consent of the opposing party or leave of the court. Rule 15 says that

courts “should freely give leave when justice so requires.” Fed. R. Civ. P.

15(a)(2). Despite this generally permissive approach, a district court need not

grant leave to amend where (1) “there has been undue delay, bad faith, dilatory

motive, or repeated failure to cure deficiencies by amendments previously

allowed”; (2) “allowing amendment would cause undue prejudice to the opposing




                                           5
              Case: 14-11295     Date Filed: 04/06/2015    Page: 6 of 6


party”; or (3) the “amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161,

1163 (11th Cir. 2001) (per curiam).

      The district court gave Moody two opportunities to amend her complaint.

Despite the district court’s specific explanation of the complaint’s deficiencies,

Moody failed in each earlier amendment to add facts which plausibly connect the

City of Delray Beach to the constitutional harms she alleges she suffered. This is

true even though “[i]t is difficult to imagine how the district court could have been

more explicit in expressing its concern over the complaint’s deficiencies and in

recommending the changes necessary to correct them.” Friedlander v. Nims, 755

F.2d 810, 813 (11th Cir. 1985). Also, any further amendment against the State of

Florida would have been futile, because no § 1983 suit can be properly pleaded

against a state. Bryant, 252 F.3d at 1163; Will, 491 U.S. at 71, 109 S. Ct. at 2312.

The district court did not abuse its discretion by denying Moody’s request for

amendment and dismissing her complaint with prejudice.

      AFFIRMED.




                                          6
