             Case: 12-12750   Date Filed: 06/05/2013   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-12750
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:11-cv-03358-RLV



VADIS J. FRONE, SR.,

                                                          Plaintiff-Appellant,

                                     versus

CITY OF RIVERDALE,
JUDGE RONALD FREEMAN,
Riverdale Court Judge,
NATHANIAL MINGO,
Riverdale Court Service Manager,

                                                        Defendants-Appellees.

                         ________________________

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

                                   (June 5, 2013)

Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Vadis J. Frone, proceeding pro se,1 appeals the district court’s dismissal of

his civil rights complaint brought under 42 U.S.C. § 1983 against the City of

Riverdale (City), Riverdale Municipal Court Judge Ronald Freeman, and Riverdale

Court Services Manager Nathaniel Mingo. Frone’s complaint asserts due process

and equal protection violations based on his allegation that Defendants unlawfully

deprived him of his right to appeal a speeding conviction and forced him to pay his

fine while his appeal was or should have been pending.2 Frone raises multiple

issues on appeal, which we address in turn.

Issue One

       Frone first argues the district court erred in granting the Defendants’ Federal

Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. We

review de novo a grant of a motion to dismiss under Rule 12(b)(6), “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). To survive dismissal, a plaintiff’s complaint “must contain sufficient

factual matter, accepted as true, to state a claim for relief that is plausible on its

face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Stating a claim upon which


1
 “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and
will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998).
2
  It is unclear whether Frone is actually asserting a claim for relief as to Mingo, as Frone stated
he is not seeking damages against Mingo.
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relief may be granted “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not” be enough to survive a Rule

12(b)(6) motion. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007).

      The district court did not err in dismissing Frone’s complaint for failure to

state a claim. Frone failed to state a § 1983 claim against the City because he has

not alleged any facts that would implicate a city custom or policy responsible for

his injury. See Monell v. Dep’t of Soc. Servs., 98 S. Ct. 2018, 2037-38 (1978)

(stating “a local government may not be sued under § 1983 for an injury inflicted

solely by its employees or agents,” but is instead only responsible when the

“execution of a government’s policy or custom . . . inflicts the injury” ). Frone

also failed to state a claim against Judge Freeman, who is entitled to absolute

judicial immunity. Frone’s argument that his notice of appeal stripped Judge

Freeman of jurisdiction, and thus his judicial immunity, is unavailing because

“[t]he applicability of judicial immunity does not depend on the determination of

nice questions of jurisdiction.” See Rolleston v. Eldridge, 848 F.2d 163, 165 (11th

Cir. 1988) (quotation omitted) (rejecting the argument that judicial immunity did

not apply because the judge issued the order after plaintiff filed a notice of appeal).

      Moreover, the facts set forth in Frone’s complaint fail to demonstrate a

violation of the Due Process or Equal Protection Clauses. The conduct Frone’s

complaint ascribes to Judge Freeman and Mingo amounts to, at most, a negligent


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failure to follow state law governing Frone’s trial and appeal, and does not

constitute a “deprivation” under the Due Process Clause. See Daniels v. Williams,

106 S. Ct. 662, 664-66 (1986) (stating that mere negligent conduct by a state

official, even though causing injury, does not constitute a “deprivation” under the

Due Process Clause). Likewise, Frone has failed to establish an equal protection

claim because he has not alleged any facts showing similarly situated individuals

were treated more favorably. Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th

Cir. 2004).

Issue Two

      Frone next argues the district court should have allowed him to amend his

complaint. The district court denied Frone leave to amend his complaint because it

would be futile. We review the denial of a motion to amend a complaint for abuse

of discretion and review de novo whether the requested amendment would be

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

      Although “[o]rdinarily, a party must be given at least one opportunity to

amend before the district court dismisses the complaint,” the district court need not

allow an amendment “where amendment would be futile.” Corsello v. Lincare,

Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). Amending a complaint would be futile

if the complaint, as amended, would still be subject to dismissal. Cockrell, 510

F.3d at 1310.


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      We conclude the district court properly denied Frone leave to amend his

complaint. Neither in the district court nor on appeal has Frone stated how he

would amend his complaint. He has not identified any new facts, nor has he cited

to anything different from his original complaint that he would include if granted

leave to amend. Instead, he reiterates the same facts alleged in his original

complaint. As such, the district court correctly determined that granting leave to

amend would have been futile.

Issue Three

      Finally, Frone contends the magistrate judge erred in denying his motion for

costs of service. We generally review costs awards for abuse of discretion.

Cochran v. E.I. duPont de Nemours, 933 F.2d 1533, 1540 (11th Cir. 1991).

      Pursuant to Federal Rule of Civil Procedure 4(d)(1), a plaintiff may request

that a defendant waive service of summons. The notice and request must, among

other requirements, “be accompanied by . . . two copies of a waiver form.” Fed. R.

Civ. P. 4(d)(1). The court may impose the costs of service on the defendant if the

defendant fails to sign and return the waiver form without showing good cause for

the failure. Fed. R. Civ. P. 4(d)(2).

      The magistrate judge did not abuse his discretion in denying Frone’s motion

for costs of service. The waiver of service provisions do not apply to the City.

Fed. R. Civ. P. 4(d)(1), (j). As to Judge Freeman and Mingo, Frone admitted he


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did not send them an actual waiver form, but rather a document that contained

language from Rule 4(d), and argued they could have printed a copy of the actual

waiver form, filled it out, and returned it. Thus, Frone admitted he did not comply

with Rule 4(d), which requires that the plaintiff send the Defendants a “waiver

form.” Compare Fed. R. Civ. P. 4(d)(1)(C) (requiring plaintiff to send defendants

“two copies of a waiver form”) with Fed. R. Civ. P. 4(d)(1)(D) (requiring plaintiff

to inform defendant of consequences for failure to waive “using text prescribed in

Form 5”). Accordingly, we conclude the magistrate judge did not abuse his

discretion in denying Frone’s motion for costs of service.

      AFFIRMED.




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