            Case: 15-13350   Date Filed: 03/23/2016   Page: 1 of 4


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13350
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cv-21120-KMM,
                       Bkcy No. 13-bkc-01740-LMI


In re:

DONALD ALAN TOBKIN,

                                                                         Debtor.

   ______________________________________________________________

DONALD ALAN TOBKIN,

                                                             Plaintiff-Appellant,

                                   versus

FREDERICK FRANCIS RUDZIK,
TYMEKA SCOTT,
BARBARA MACKEY,
FLORIDA DEPARTMENT OF REVENUE,

                                                         Defendants-Appellees.
               Case: 15-13350    Date Filed: 03/23/2016    Page: 2 of 4


                           ________________________

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

                                  (March 23, 2016)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Donald Tobkin appeals the district court’s dismissal of his amended

complaint, which alleged that Frederick Rudzik, Tymeka Scott, Barbara Mackey,

and the State of Florida Department of Revenue violated his constitutional rights

and various state laws by filing proofs of claim against him in his bankruptcy

proceedings.

      After Tobkin filed for bankruptcy, the defendants filed proofs of claim

relating to his domestic support obligations. Tobkin filed a pro se complaint in the

bankruptcy court asserting that the proofs of claim were “false, falsified, forged,

unlawful, exaggerated, invalid, void, and/or unenforceable” because Scott filed an

arrearage affidavit in which she impersonated a Deputy Clerk of Florida’s Ninth

Judicial Circuit, and the other defendants knew or should have known that when

they relied on that affidavit. The district court concluded that Tobkin’s complaint

alleged claims arising under 42 U.S.C. § 1983, withdrew the reference to the

bankruptcy court, and ordered Tobkin to refile his complaint in the district court.


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      Tobkin filed an amended complaint reiterating his claims. After the

defendants moved to dismiss and Tobkin responded to that motion, John Ostrow

entered an appearance as Tobkin’s attorney. The parties then filed a joint

scheduling report, which stated that there was no need to amend the pleadings “at

this time.” Soon after, the district court granted the defendants’ motion to dismiss,

finding that Tobkin’s complaint was “bereft of any facts necessary to state a claim

for relief that is plausible on its face, [and] full of conclusory, unfounded, and

borderline unintelligible allegations.”

      We review de novo a district court’s dismissal for failure to state a claim,

viewing the allegations in the complaint as true. Mitchell v. Farcass, 112 F.3d

1483, 1490 (11th Cir. 1997). “To survive a motion to dismiss, 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 marks omitted). Facial plausibility means “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. “To prevail on a

claim under § 1983, a plaintiff must demonstrate both (1) that the defendant

deprived [him] of a right secured under the Constitution or federal law and (2) that




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such a deprivation occurred under color of state law.” Arrington v. Cobb Cty., 139

F.3d 865, 872 (11th Cir. 1998).

      Tobkin’s amended complaint was entirely devoid of factual allegations that

give rise to a cognizable claim under § 1983. His only factual allegations were that

Scott impersonated a state court’s deputy clerk and that the other defendants knew

it. He failed to specify any “right secured under the Constitution or federal law”

that their actions violated. Arrington, 139 F.3d at 872. To the extent that Tobkin

now argues that the district court erred by failing to grant him leave to amend his

complaint, that argument is a nonstarter. “A district court is not required to grant a

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is

represented by counsel, never filed a motion to amend nor requested leave to

amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314

F.3d 541, 542 (11th Cir. 2002) (en banc). Not only did Tobkin’s attorney fail to

request leave to amend, he indicated in the joint scheduling report that he did not

need to amend the pleadings. The district court did not err in dismissing Tobkin’s

amended complaint.

      AFFIRMED.




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