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                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 16-16936
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 3:14-cv-00466-MCR-CJK



MICHAEL A. EVANS,

                                                        Plaintiff - Appellant,


                                versus


TERRY L. RHODES,
Executive Director,
FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR
VEHICLES,

                                                     Defendants - Appellees.

                     ________________________

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

                            (May 25, 2018)
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Before JULIE CARNES, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:

      Michael Evans, proceeding pro se, appeals the district court’s grant of

summary judgment on his 42 U.S.C. § 1983 complaint in favor of Terry Rhodes, in

her official capacity as the Executive Director of the Florida Department of

Highway Safety and Motor Vehicles (the “Department”). Evans argues that

summary judgment was inappropriate because the Department suspended his

driver’s license without due process of law. After careful review, we affirm.

                               I.      BACKGROUND

      Evans was convicted in Florida of possession of an open container of

alcohol and of marijuana. As a result, he was ordered to pay court costs and fees

totaling over $1,000. When Evans failed to pay the court costs, the Department

sent him an “order of license revocation, suspension, or cancellation” (the

“Order”), explaining that Evans was required to pay his criminal court costs or his

driver’s license would be suspended pursuant to Florida Statutes § 322.245.

      Under § 322.245, when the Department receives notice that a person

licensed to operate a motor vehicle in Florida has failed to pay financial obligations

for a criminal offense, the Department must suspend his driver’s license. Fla. Stat.

§ 322.245(5)(a). The Department is required to notify the individual of the

suspension either by mail or personal delivery. Id. § 322.251(1). The suspension


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takes effect 20 days after the Department mails the notice. Id. § 322.251(2). Post-

suspension review may be sought by filing a petition for writ of certiorari in the

circuit court in the county in which the individual resides. Id. § 322.31. In

addition, the Department must reinstate a person’s driving privileges if the person

provides an affidavit stating either that he entered into a written agreement for the

payment of the financial obligation through a payment plan or that a court entered

an order granting relief and ordering reinstatement of the license. Id.

§ 322.245(5)(b).

      Evans submitted such an affidavit, stating that he had entered into an agreed-

upon payment plan. He subsequently failed to pay the required clerk-assessed

amount under the payment plan, however, and was issued another notice of non-

compliance. After being issued this second notice, Evans failed to regain

compliance, and his license was suspended.

      Evans filed his pro se amended complaint, alleging that he had been

deprived of due process of law because the Department had suspended his driver’s

license without affording him a pre-suspension hearing. The Department filed a

motion to dismiss and attached exhibits to the motion, including the docket sheet

for Evans’s state criminal case, his official driving record, the Order that was sent

to him, and his affidavit to reinstate his driver’s license.




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      The magistrate judge notified both parties that the motion to dismiss would

be treated as a motion for summary judgment, instructing Evans to respond to the

motion by attaching affidavits or other supporting documentary evidence to

demonstrate a genuine issue of material fact. Evans filed a cross-motion for

summary judgment but did not attach any affidavits or supporting documents to his

motion.

      The magistrate judge issued a Report and Recommendation (“R&R”)

recommending that the district court grant the motion for summary judgment

because Evans had not been deprived of due process of law. The district court

adopted the R&R and granted the motion for summary judgment. Evans then filed

a motion to alter or amend the judgment under Federal Rule of Civil Procedure

59(e); the district court denied the motion. This is Evans’s appeal.

                        II.    STANDARD OF REVIEW

      We review a grant of summary judgment de novo. Kernel Records Oy v.

Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). Summary judgment is appropriate

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a).

                               III.   DISCUSSION

      We address, as a preliminary matter, Evans’s argument that the district court

erred in converting the Department’s motion to dismiss into a motion for summary


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judgment. The Federal Rules of Civil Procedure provide that a motion to dismiss

shall be treated as a motion for summary judgment if the movant presents matters

outside the pleadings. Fed. R. Civ. P. 12(d). When a district court converts a

motion to dismiss into one for summary judgment, the court is required to give

“notice to the parties and an opportunity for mutual discovery.” Adinolfe v. United

Techs. Corp., 768 F.3d 1161, 1168 (11th Cir. 2014). These requirements were met

here: the motion presented matters outside the pleadings, and the magistrate judge

provided notice to both parties and an opportunity for mutual discovery. The

magistrate judge thus did not err in converting the motion to dismiss into a motion

for summary judgment.

      Evans next argues that Florida Statutes § 322.245 is unconstitutional because

it allowed the Department to suspend his driver’s license for failure to pay court

costs without affording him a pre-suspension hearing, in violation of the Due

Process Clause of the Fourteenth Amendment.

      The Due Process Clause provides that no state shall “deprive any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,

§ 1. To state a claim for a violation of procedural due process under § 1983, a

claimant must allege three elements: (1) that he was deprived of a constitutionally-

protected liberty or property interest, (2) through state action, (3) as a result of

constitutionally-inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232


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(11th Cir. 2003). A driver’s license is a constitutionally-protected property

interest, Dixon v. Love, 431 U.S. 105, 112 (1977), and it is undisputed that the

suspension of Evans’s driver’s license involved state action. We thus consider

whether the procedure used was constitutionally adequate.

       To determine whether procedures used to deprive a property interest are

constitutionally adequate, this Court must apply the balancing test set forth in

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Specifically, we balance (1) the

private interest that will be affected by the official action, (2) the risk that the

procedures used will cause an erroneous deprivation of such interest and the

probable value of additional procedural safeguards, and (3) the government’s

interest, including the administrative burdens that any additional procedural

safeguards would entail. Id.

       In Dixon, the Supreme Court applied the Mathews test to determine whether

an Illinois law that permitted the state to suspend or revoke a driver’s license

without a preliminary hearing was constitutional. Dixon, 431 U.S. at 112-15. 1 In

analyzing the first factor, the private interest involved, the Supreme Court noted

that although persons have a property interest in their driver’s licenses, such an

       1
          The statute at issue in Dixon allowed for revocation or suspension if the driver’s
conduct fell into one of 18 statutorily enumerated categories, including “three moving traffic
offenses within a 12-month period” and being “repeatedly convicted of offenses against laws and
ordinances regulating the movement of traffic, to a degree which indicates the lack of ability to
exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for
the traffic laws and the safety of other persons upon the highway.” 431 U.S. at 107-08.

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interest was not “so great as to require us to depart from the ordinary principle . . .

that something less than an evidentiary hearing is sufficient prior to adverse

administrative action.” Id. at 113 (internal quotation marks omitted). As for the

second factor, in Dixon the Court held that the risk of erroneous deprivation in the

absence of a preliminary hearing was not great because suspension decisions were

“automatic” based on previous traffic offenses (the validity of which were

undisputed) and involved little administrative discretion. Additional procedural

safeguards therefore were unnecessary. Id. at 113-14. Third, the Court held that

the substantial government interest in administrative efficiency would be

obstructed by requiring preliminary hearings in every case and that the state also

had an important public interest in keeping the roads safe and free of those “unable

or unwilling to respect traffic rules.” Id. at 114-15. The Supreme Court thus

determined that the Illinois statute was not unconstitutional.

       As in Dixon, first, the property interest of which Evans was deprived when

the Department suspended his license was not so essential as to require a pre-

suspension evidentiary hearing. 2 Second, Evans suffered no substantial risk of

erroneous deprivation because the statutory scheme, like that in Dixon, allows little

possibility for administrative discretion: the Department must suspend the license

       2
          Evans also asserts that the statute does not provide for an immediate post-suspension
hearing, but, as noted above, post-suspension review may be sought by filing a petition for writ
of certiorari in the circuit court in the county in which the individual resides, Fla. Stat. § 322.31.


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upon notice from the clerk of failure to pay court costs. Like Dixon, Evans has not

challenged the factual basis for his suspension; rather, he asserts that he should

have received a preliminary hearing to evaluate his financial hardship.

Importantly, Evans does not argue that the court failed to evaluate his ability to pay

or denied him procedural due process when the criminal court costs initially were

imposed. In addition, the Florida statute provides for notice of suspension and for

reinstatement of the license if the person agrees to a payment plan or, alternatively,

if a court enters an order granting relief and ordering reinstatement. Thus, it is

unlikely that further procedures would provide more protection from erroneous

deprivation.

      Third, the government has a significant interest that is protected by the

statute: ensuring that defendants comply with their legal obligations in criminal

cases. As in Dixon, requiring pre-suspension hearings would create a substantial

administrative burden on the state. To be fair, the statute at issue in Dixon

suspended the driver’s licenses of individuals with multiple traffic offenses. Thus,

the state’s interest in keeping those individuals off the road was linked more

directly to the suspension than the state’s interest here, where the statute provides

for suspension of the driver’s licenses of individuals who fail to pay court costs

associated with various non-traffic criminal offenses. Nevertheless, the balance of

the factors weighs in favor of constitutionality.


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      In support of his due process argument, Evans cites to Bell v. Burson, 402

U.S. 535 (1971), and Mackey v. Montrym, 443 U.S. 1 (1979). Both cases are

distinguishable. In Bell, the Supreme Court held that Georgia’s statute providing

for suspension of the driver’s license of an uninsured motorist involved in an

accident unless he posted security for the amount of damages claimed by the

aggrieved party, without a pre-suspension hearing for consideration of fault or

responsibility for the accident, violated procedural due process. Bell, 402 U.S. at

536, 542-43. Unlike the statute in Bell, the Florida statute at issue suspends a

driver’s license only after an individual’s conviction of a crime and failure to pay

the associated fees assessed by the criminal court. As we noted above, Evans does

not argue that he was denied due process during these underlying proceedings.

Here, then, the person whose license is suspended pursuant to § 322.245 has been

provided adequate process regarding responsibility for the conduct giving rise to

the suspension that was not afforded to the person whose license was suspended

under the statute in Bell.

      In Mackey, the Supreme Court held that a Massachusetts statute requiring

suspension of a driver’s license for 90 days upon refusal to take a breath-analysis

test, where the licensee was entitled to an immediate hearing after surrendering his

license, did not violate due process. Mackey, 443 U.S. at 3-4, 19. Evans argues

that the statute at issue in Mackey was upheld in large part because of the


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immediate post-suspension hearing and that such a hearing is lacking from

Florida’s statutory scheme. Florida law does provide for post-suspension review

of a driver’s license suspension, however. See Fla. Stat. § 322.31. Assuming,

arguendo, that the post-suspension review is not “immediate,” Evans’s argument

fails because the statutory schemes are materially different. The Mackey statute,

for example, suspended driver’s licenses based upon the decisions of individual

law enforcement officers. The Florida statute, as explained above, leaves no room

for such discretion. Further, no underlying conviction was necessary to trigger

suspension under the Mackey statute. The instant statute, however, applies only

when a person with a valid criminal conviction fails to pay the court costs imposed

during his criminal court proceeding. Thus, the statute provides procedural

safeguards not available under the statute in Mackey. We conclude that the

procedures provided in Florida Statutes § 322.245 do not violate the Due Process

Clause.3

                                    IV.     CONCLUSION

       For the foregoing reasons, we affirm the district court’s grant of summary

judgment to the Department.


       3
          In his notice of appeal, Evans also appealed the district court’s denial of his Rule 59(e)
motion to alter or amend the judgment. Because Evans makes no argument about this issue in
his brief, the issue is abandoned. 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.” (citation omitted)).


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AFFIRMED.




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