          Case: 17-15704   Date Filed: 10/15/2019   Page: 1 of 8


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 17-15704
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:17-cv-01261-MHC



DAVID ANDREW NEZBEDA,
HEIDI CHRISTINE NEZBEDA,

                                                        Plaintiffs-Appellants,

                                 versus

LIBERTY MUTUAL INSURANCE CORPORATION,
(LIC),
GILLIAN O’NAN,
MARK EDWARD MCRORIE,
ROBERT DALE LEONARD, II,
MELISSA BRICKEY, et. al.,

                                                       Defendants-Appellees.

                     ________________________

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

                           (October 15, 2019)
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Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

      David and Heidi Nezbeda, proceeding pro se, appeal the sua sponte dismissal

of their complaint after the district court concluded that it was a shotgun pleading

and that their federal claims were frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). On

appeal, the Nezbedas argue that the district court erred in dismissing their complaint

as a shotgun pleading without first allowing them to amend. Because the Nezbedas

do not challenge the district court’s conclusion that their federal claims were

frivolous under § 1915(e), we affirm.

                                          I

      The allegations surrounding the Nezbedas’ claims are long and convoluted.

The district court’s order discussed them at length, so we will not recount them fully

here. The district court summarized the complaint as follows:

             [The Nezbedas], appearing pro se, have filed a twenty-
             nine page Complaint against twenty-eight named
             defendants. The Complaint contains 179 individually
             numbered paragraphs and incorporates by reference a
             forty-four-page affidavit of fact [by Mr. Nezbeda which]
             contain[s] an additional 190 individually numbered
             paragraphs. The allegations in the Complaint are
             disjointed, voluminous, and difficult to follow.

D.E. 11 at 4 (internal citations omitted). The claims emerge from Mr. Nezbeda’s

divorce and child-custody proceedings against his ex-wife and devolve into a

conspiracy against him by several actors within the court system in Cobb County,
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Georgia. According to Mr. Nezbeda, these crooked proceedings resulted in his

unconstitutional incarceration and a Georgia superior court judge extorting him. To

complicate matters, Mr. Nezbeda asserts that this conspiracy intersects with his

home insurer’s denial of his insurance claim. Throughout the more than 300

paragraphs in the complaint and its accompanying affidavit, one common thread

emerges: everyone from his ex-wife to his home insurer is allegedly conspiring

against Mr. Nezbeda.

      In December of 2016, a federal magistrate court judge permitted the Nezbedas

to proceed in forma pauperis and referred their complaint to the district court to

determine if it was frivolous under 28 U.S.C. § 1915(e). The district court sua sponte

dismissed the complaint—without allowing them to amend—on two grounds. First,

the district court outlined this circuit’s policy and rules against shotgun pleadings

and concluded that the Nezbedas’ complaint was a shotgun pleading. It reasoned

that the complaint was “‘replete with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of action’ and, ultimately, fail[ed] ‘to

give the defendants notice of the claims against them and the grounds upon which

each claim rests.’” D.E. 11 at 17 (quoting Weiland v. Palm Beach Cty. Sheriff’s

Office, 792 F.3d 1313, 1322, 1323 (11th Cir. 2015)). Second, the district court

concluded that “[e]ven if the [c]omplaint were not subject to dismissal as a shotgun

pleading,” its claims were frivolous because the complaint failed state a claim under


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federal law and, thus, did not establish subject matter jurisdiction. D.E. 11 at 18, 20,

30.

       On appeal, the Nezbedas assert that the district court erred by dismissing their

complaint without first permitting them to amend. They specifically argue that “a

district court must sua sponte give [the plaintiffs at least] one chance to replead

before dismissing [their] case with prejudice on non-merits shotgun pleading

grounds.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018)

(discussing our rule when a litigant who is represented by counsel files a shotgun

pleading). The argument section of the Nezbedas’ brief, however, includes only four

sentences and does not address the district court’s frivolity conclusion or how “a

more carefully drafted complaint might state a claim” in this case. See Bank v. Pitt,

928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy

Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Liberty Mutual

Insurance Corp., one of the appellees, responded, arguing that the Nezbedas’ federal

claims failed as a matter of law.1 The Nezbedas did not file a reply brief.

                                                 II

       In forma pauperis proceedings are governed by 28 U.S.C. § 1915. Subsection

(e)(2) of that statute provides that “the court shall dismiss the case at any time if the



1
 Liberty Mutual is the only defendant that filed a brief in this appeal because, according to Liberty
Mutual, the Nezbedas failed to serve any other defendants.
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court determines that . . . (B) the action or appeal—(i) is frivolous or malicious [or];

(ii) fails to state a claim upon which relief may be granted . . . .” § 1915(e)(2). A

district court’s sua sponte dismissal for failure to state a claim under §

1915(e)(2)(B)(ii) is reviewed de novo, viewing the allegations in the complaint as

true. See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). A district

court’s sua sponte dismissal for frivolity under § 1915(e)(2)(B)(i), however, is

reviewed for an abuse of discretion. See Bilal v. Driver, 251 F.3d 1346, 1348–49

(11th Cir. 2001). “A claim is frivolous if it is without arguable merit either in law

or fact.” Id. at 1349. See Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per

curiam) (stating that a claim is frivolous “when it appears the plaintiff has little or

no chance of success”) (internal quotations omitted).2

       We liberally construe pro se pleadings, holding them to a less stringent

standard than pleadings that are drafted by attorneys. See Evans v. Ga. Reg’l Hosp.,

850 F.3d 1248, 1253 (11th Cir. 2017). See also Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998) (per curiam). This liberal construction, however,

“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.” GJR Invs., Inc. v. Cty.



2
  The district court concluded both that the Nezbedas’ complaint “failed to state a claim upon
which relief can be granted” and that it “[was] frivolous under 28 U.S.C. §1915(e)(2)(B)(ii).” D.E.
11 at 30. The Nezbedas’ notice of appeal, however, specifically cites the district court’s dismissal
of this claims “as [f]rivolous,” D.E. 13 at 1, and their brief references the abuse of discretion
standard.
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of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citation omitted). A pro

se complaint must still comply with the Federal Rules of Civil Procedure and provide

some factual support to plausibly state its claims. See Waldman v. Conway, 871

F.3d 1283, 1289 (11th Cir. 2017) (per curiam); Moon v. Newsome, 863 F.2d 835,

837 (11th Cir. 1989).

      Despite the liberal pleading standard, if a pro se litigant fails to properly raise

an issue on appeal, he or she abandons that issue. See Timson v. Sampson, 518 F.3d

870, 874 (11th Cir. 2008). See also Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th

Cir. 2002). To raise an issue, an appellant must do more than “simply stat[e] that an

issue exists, without further argument or discussion.” Singh v. U.S. Att’y Gen., 561

F.3d 1275, 1278 (11th Cir. 2009) (per curiam). He or she must support the claims

with arguments and authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 681 (11th Cir. 2014).

                                          III

       The district court in this case cited two alternative reasons to dismiss the

Nezbedas’ complaint. The first was that the complaint amounted to a shotgun

pleading, and the second was that the Nezbedas’ federal claims were frivolous.

Therefore, to meet their burden on appeal, the Nezbedas must establish that neither

reason justified dismissal. See Sapuppo, 739 F.3d at 680 (“When an appellant fails

to challenge properly on appeal one of the grounds on which the district court based


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its judgment, he is deemed to have abandoned any challenge of that ground, and it

follows that the judgment is due to be affirmed.”).

       We agree that a district court generally must permit a pro se plaintiff to amend

his or her complaint at least once before sua sponte dismissing claims on shotgun

pleading grounds. See Vibe Micro, Inc., 878 F.3d at 1296; Bank, 928 F.2d at 1112.3

And we would be inclined to reverse if the district court’s only reason for dismissing

the Nezbeda’ complaint was that it was a shotgun pleading. But that is not the case.

The district court also concluded that the Nezbedas’ claims were frivolous, which

(in the district court’s words) justified dismissal “[e]ven if the [c]omplaint were not

subject to dismissal as a shotgun pleading.” D.E. 11 at 18, 30.

       The district court may dismiss a plaintiff’s claims sua sponte—without

requiring or permitting the plaintiff to amend—if it concludes that the claims are

frivolous. See Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (citing §

1915(e)(2)(B)(i)). The Nezbedas present no arguments whatsoever to challenge the

district court’s conclusion that all of their federal claims are frivolous.               Any

argument to that issue is therefore abandoned. See Sapuppo, 739 F.3d at 680;

Timson, 518 F.3d at 874. We therefore cannot say that the district court abused its

discretion in dismissing the Nezbedas’ claims. See Bilal, 251 F.3d at 1350.


3
  We note that the district court’s order in this case referred to the Nezbedas’ complaint as
“Plaintiff[s’] Amended Complaint,” but our review of the record reveals that the Nezbedas never
moved to amend their complaint and the district court never ordered them to amend.
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                                        III

      For the foregoing reasons, we affirm the district court’s sua sponte dismissal

of the Nezbedas’ complaint.

     AFFIRMED.




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