             Case: 16-17321   Date Filed: 08/25/2017   Page: 1 of 9


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-17321
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 5:16-cv-00562-JSM-PRL

RALPH A. UDICK,

                                                            Plaintiff – Appellant,

                                    versus

THE STATE OF FLORIDA,

                                                          Defendant - Appellee.

                        ________________________

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

                              (August 25, 2017)

Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     The Florida District Courts of Appeals (“DCAs”) affirm some lower court

judgments through “per curiam affirmances” (“PCAs”)—unsigned, unpublished
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opinions that lack reasoned analysis and consist solely of the word “Affirmed”—

which the Florida Supreme Court has no jurisdiction to review. Ralph Udick,

proceeding pro se, sued the State of Florida to obtain a declaration that this

practice violates the Fourteenth Amendment and that two PCAs entered against

him in a case he appealed are null and void. The district court dismissed his

complaint on the ground, among others, that Florida enjoyed sovereign immunity

under the Eleventh Amendment. On appeal, Udick contends that Florida is not

immune from his suit. Upon careful review, we affirm.

                                      I.     BACKGROUND

A.     PCAs’ Role in Florida’s Judicial Structure

       To relieve the Florida Supreme Court of burdens in administering justice

caused by its growing docket congestion, Florida’s legislature created the DCAs

“to be courts of final, appellate jurisdiction” in most cases. Lake v. Lake, 103 So.

2d 639, 641-42 (Fla. 1958). As such, DCA opinions are “in most instances . . .

final and absolute,” with the Florida Supreme Court serving primarily “as a

supervisory body . . . exercising appellate power in certain specified areas essential

to the settlement of issues of public importance and the preservation of uniformity

of principle and practice.”1 Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958).


       1
          The Florida Supreme Court may hear appeals only from those decisions of the DCAs
“declaring invalid a state statute or a provision of the state constitution;” “expressly declar[ing]
valid a state statute;” “expressly constru[ing] a provision of the state or federal constitution[;]”
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       Shortly after the DCAs’ creation, the Florida Supreme Court declared that it

would not review a PCA unless the PCA “prima facie conflicts with a decision of

another [DCA] or of the Supreme Court on the same point of law.” Lake, 103 So.

2d at 643. Yet litigants continued to inundate the Court with appeals from PCAs.

Foley v. Weaver Drugs, Inc., 177 So. 2d 221, 223 (Fla. 1965). Processing these

appeals exhausted the Court’s judicial resources. Id. And so, at the Court’s

urging, Florida’s legislature amended the state’s constitution to strip the Florida

Supreme Court of jurisdiction to review PCAs altogether, even where the lower

court decision being affirmed arguably disregarded a state statute. See Fla. Const.

art. V, § 3(b)(3); Jackson v. State, 926 So. 2d 1262, 1266 (Fla. 2006); Jenkins v.

State, 385 So. 2d 1356, 1359 (Fla. 1980). As a result, the Florida Supreme Court

lacks jurisdiction over PCAs in all contexts. Jackson, 926 So. 2d at 1266.

B.     Udick’s Lawsuits Against His Homeowners’ Association

       Ralph Udick filed two complaints against his homeowners’ association,

Harbor Hills Development L.P., in Lake County Circuit Court, challenging the

association’s assessment of certain fees. The circuit court granted Harbor Hills

summary judgment in both suits, determining in each that res judicata precluded


“expressly affect[ing] a class of constitutional or state officers;” “expressly and directly
conflict[ing] with a decision of another [DCA] or of the supreme court on the same question of
law;” or “pass[ing] upon a question certified by it to be of great public importance, or that is
certified by it to be in direct conflict with a decision of another [DCA].” Fla. Const. art. V §§
3(b)(1), (3)-(4).

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judgment in Udick’s favor because Udick had notice of an earlier Harbor Hills

derivative suit brought on behalf of the entire class of homeowners, but did not ask

to be removed or excluded from the class. The DCA affirmed both judgments. In

the first case, it published a five-page opinion. That opinion is not at issue here. In

the second case, it issued a PCA.

      Udick requested rehearing en banc as to the PCA, which the DCA denied.

Udick then appealed the PCA to the Florida Supreme Court, which dismissed his

appeal for lack of jurisdiction. The DCA granted Harbor Hills’s motion for

attorney’s fees and remanded the case to the circuit court to determine the amount

of the fee award. The circuit court awarded Harbor Hills $55,342.50, plus interest,

in attorney’s fees and expert fees. Udick appealed the circuit court’s attorney’s fee

award, and the DCA issued a second PCA.

C.    Udick’s Present Suit

      Udick filed a complaint against the State of Florida in the United States

District Court, asserting that PCAs’ nonreviewability violates the Fourteenth

Amendment’s Due Process and Equal Protection Clauses. He requested that the

district court (1) declare Florida’s PCA system unconstitutional and the PCAs

entered against him in his appeals null and void, or in the alternative (2) direct the

Florida Supreme Court to review the PCAs. Florida moved to dismiss.




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      The district court granted Florida’s motion to dismiss on the grounds that (1)

the state enjoyed immunity from suit under the Eleventh Amendment; (2) the

Rooker-Feldman doctrine precluded jurisdiction because Udick sought to

invalidate his state court judgments, see D.C. Court of Appeals v. Feldman, 460

U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); and (3) Udick

failed to state a claim upon which relief could be granted. Udick moved to alter or

amend the court’s judgment and sought leave to file an amended complaint, so that

he could remove his request for a declaration that his PCAs are null and void and

add the Governor of Florida and the Florida Supreme Court as defendants. The

district court denied both motions, determining that Udick had articulated no

reason why its order was erroneous or should be vacated, and that his proposed

amendments to the complaint would be futile. Udick timely appealed.

                         II.    STANDARD OF REVIEW

      “A district court’s order denying or granting a motion to dismiss a complaint

against a state based on the Eleventh Amendment’s grant of sovereign immunity is

reviewed by this court de novo.” In re Emp’t Discrimination Litig. Against Ala.,

198 F.3d 1305, 1310 (11th Cir. 1999). We also review de novo a district court’s

determination that it lacked subject matter jurisdiction over a suit in light of the

Rooker-Feldman doctrine. Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327,

1331 (11th Cir. 2001). “Although we review a district court’s denial of a motion to

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amend only for abuse of discretion, 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). “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).

                                 III.   ANALYSIS

      “The Judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI. “Although, by its terms, the Eleventh Amendment

does not bar suits against a state in federal court by its own citizens, the Supreme

Court [in Hans v. Louisiana] has extended its protections to apply in such cases.”

Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1303 (11th Cir.

2005) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)).

      “The Eleventh Amendment bar to suit is not absolute,” however, as “States

may consent to suit in federal court, and, in certain cases, Congress may abrogate

the States’ sovereign immunity.” Port Auth. Trans-Hudson Corp. v. Feeney, 495

U.S. 299, 304 (1990) (internal citations omitted). Moreover, under the Ex Parte

Young doctrine, “official capacity suits for prospective relief to enjoin state

officials from enforcing unconstitutional acts are not deemed to be suits against the

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state and thus are not barred by the Eleventh Amendment.” Scott v. Taylor, 405

F.3d 1251, 1255 (11th Cir. 2005) (citing Ex Parte Young, 209 U.S. 123 (1908)).

The Ex Parte Young doctrine is a “narrow” “exception” to state sovereign

immunity; “[i]t applies only to prospective relief, does not permit judgments

against state officers declaring that they violated federal law in the past, and has no

application in suits against the States and their agencies, which are barred

regardless of the relief sought.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 146 (1993) (internal citation omitted).

      The Eleventh Amendment barred Udick’s suit. See Abusaid, 405 F.3d at 15.

Udick does not argue that Florida consented to be sued or that Congress validly

abrogated the State’s Eleventh Amendment immunity. He instead argues that the

Eleventh Amendment does not prohibit a person from suing his own state, and that

he may sue Florida as a citizen of Florida. Acknowledging that Hans holds

otherwise, Udick contends that Hans contravenes the Eleventh Amendment’s text

and thus is invalid. Even if we agreed, we lack authority to disregard Hans, which

remains good law and thus commands our adherence unless and until the Supreme

Court says otherwise. See Hutto v. Davis, 454 U.S. 370, 375 (1982); see also

Sossamon v. Texas, 563 U.S. 277, 284 (2011) (citing Hans as binding authority).

      Nor can Udick sue Florida under the Ex Parte Young doctrine, as he argues,

because that doctrine permits only suits against state officials, not the State itself.

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P.R. Aqueduct, 506 U.S. at 146; Scott, 405 F.3d at 1255. Udick suggests that the

Eleventh Amendment does not apply to suits challenging State actions alleged to

violate the Fourteenth Amendment’s Due Process or Equal Protection Clauses, but

the cases he cites for this contention are distinguishable from the matter at hand.

Lawrence v. Texas, Loving v. Virginia, and Griswold v. Connecticut each reviewed

the constitutionality of criminal statutes, Lawrence, 539 U.S. 558, 562 (2003);

Loving, 388 U.S. 1, 2-3 (1967); Griswold, 381 U.S. 479, 480 (1965), and thus did

not involve suits brought “against a state . . . by its own citizens,” Abusaid, 405

F.3d at 1303; see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 412 (1821)

(holding that a criminal defendant who appeals a judgment rendered against him to

the Supreme Court “does not commence or prosecute a suit against [a] State.”).

Similarly, Roe v. Wade, Boddie v. Connecticut, and Brown v. Board of Education

involved actions to enjoin state officials from enforcing allegedly unconstitutional

statutes. Roe, 410 U.S. 113, 120 (1973); Boddie, 91 U.S. 371, 373 (1971); 2 Brown,

347 U.S. 483, 486 n.1 (1954).3 Tennessee v. Lane involved a valid congressional

       2
          The Boddie plaintiffs had initially sued Connecticut directly, but conceded before the
district court that the state was not a proper party to the action. See Boddie v. Connecticut, 286
F. Supp. 968, 971 (D. Conn. 1968).
       3
           The Brown plaintiffs also sued local school boards, which do not necessarily receive
Eleventh Amendment immunity. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280–81 (1977) (“[A] local school board such as petitioner is more like a county or city than
it is like an arm of the State . . . . [and thus] was not entitled to assert any Eleventh Amendment
immunity from suit in the federal courts.”); Walker v. Jefferson Cty. Bd. of Educ., 771 F.3d 748,
751 (11th Cir. 2014) (“We appl[y] a [multi]-factor test to determine whether [a] school board
enjoy[s] Eleventh Amendment immunity under federal law.”).

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abrogation of state sovereign immunity, 541 U.S. 509, 533 (2004), a circumstance

Udick does not contend is present here. None of these cases held that a plaintiff

may sue a non-consenting state in federal court to assert a Fourteenth Amendment

violation absent a valid congressional abrogation of a State’s sovereign immunity.

                                   IV.     CONCLUSION

               For these reasons, the district court did not err in dismissing Udick’s

suit on the basis of Florida’s sovereign immunity. 4

       AFFIRMED.




       4
          We need not decide whether the district court abused its discretion in denying Udick’s
motion to amend his complaint to add the Governor of Florida and the Florida Supreme Court as
defendants, as Udick has abandoned this argument by failing to raise it on appeal. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se litigants
liberally, . . . issues not briefed on appeal by a pro se litigant are deemed abandoned . . . .”).
        Having concluded that Florida is immune from Udick’s suit under the Eleventh
Amendment, we need not consider the district court’s alternative determinations that it lacked
jurisdiction over Udick’s suit under the Rooker-Feldman doctrine and that Udick failed to state a
claim upon which relief could be granted. We also need not decide whether the district court
abused its discretion in denying Udick leave to amend his complaint to avoid implicating the
Rooker-Feldman doctrine, as such amendment would have been futile given that Udick’s suit
properly was subject to dismissal due to Florida’s sovereign immunity. See Cockrell, 510 F.3d at
1310 (“Leave to amend a complaint is futile [and thus properly denied] when the complaint as
amended would still be properly dismissed . . . .”).

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