                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                           JAN 19, 2010
                             No. 08-15419                   JOHN LEY
                         Non-Argument Calendar            ACTING CLERK
                       ________________________

                   D. C. Docket No. 07-00173-CV-HL-7

REV. TOM WALKER, II,

                                                           Plaintiff-Appellant,

                                  versus

SUN TRUST BANK OF THOMASVILLE, GA,
FORREST MONROE, and/or Estate,
JOSEPH E. POGUE,
JEAN T. POGUE,
BARBARA MONROE,
CASSANDRA MONTGOMERY
THOMAS CTY FEDERAL SAVINGS & LOAN ASSOC., et al.,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                     _________________________

                            (January 19, 2010)

Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:

      Reverend Tom Walker II, proceeding pro se, appeals from the district

court’s order dismissing his complaint. On appeal, Walker argues that the district

court erred in finding that he was proceeding in forma pauperis. He also argues

that the court erred in determining that his complaint included a claim under 42

U.S.C. § 1983, and that the court should have converted the defendants’ motions to

dismiss under Fed.R.Civ.P. 12(b)(6) into motions for summary judgment under

Fed.R.Civ.P. 56. He asserts that the court should have provided him with a jury

trial and the opportunity to submit evidence in support of his claims. Walker

further contends that the court violated his constitutional rights to due process and

equal protection by dismissing his complaint. Finally, Walker argues that the

district court judge should have recused himself from consideration of his case due

to his bias against Walker. For the reasons set forth below, we affirm.

                                          I.

      Walker, a resident of Thomasville, Georgia, filed a pro se complaint, naming

the following defendants: (1) SunTrust Bank of Thomasville, Georgia

(“SunTrust”); (2) Forrest Monroe, of Thomasville, Georgia; (3) Joseph Pogue, of

Thomasville, Georgia; (4) Jean Pogue, of Thomasville, Georgia; (5) Cassandra

Montgomery, of Thomasville, Georgia; (6) Everett Montgomery, of Thomasville,



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Georgia; (7) Mary Rolling, of Thomasville, Georgia; (8) the estate of Howard

Brooks, located in Coolidge, Georgia; (9) the City of Thomasville, Georgia

(“Thomasville”); (10) the Thomas County Superior Court (“Superior Court”);

(11) the Magistrate Court of Thomas County (“Magistrate Court”); (12) the Tax

Assessor’s Office of Thomasville, Georgia (“Tax Assessor’s Office”); (13) the

Humane Society of Thomas County (“Humane Society”); (14) the Department of

Transportation, Atlanta, Georgia (“Georgia DOT”); (15) Barbara Monroe, of

Thomasville, Georgia; (16) Roosevelt Williams, of Thomasville, Georgia; (17) the

Thomas County Federal Bank; (18) the Thomas County Sheriff’s Department

(“Sheriff’s Department”); (19) Latesha Bradley, of Valdosta, Georgia; (20) Judge

Harry Jay Altman II, of the Superior Court; and (21) David Hutchings, Clerk of the

Superior Court.

      In his complaint, Walker asserted that he was bringing claims for felony

fraud, property fraud, embezzlement, falsified documents, fraudulent deeds, and

bank fraud. Walker did not set forth the elements of these offenses, nor did he

explain why the defendants were liable for these offenses. In addition, Walker

alleged that “Thomasville City officials” violated his due process rights.

Specifically, Walker asserted that Thomasville officials permitted a third party to

knock down houses and cut down trees on his property due to his



                                          3
African-American race. In his request for relief, Walker stated that he hoped to

successfully prove his “criminal case” and garner civil judgments compensating

him and his family members for physical and emotional damages.

      Walker attached a letter to his complaint. In this letter, Walker stated that he

wished to bring criminal charges against Forrest and Barbara Monroe, Jean and

Joseph Pogue, Cassandra and Everett Montgomery, and SunTrust for conspiring to

defraud him and deprive him of his real property. He also asserted that he sought

criminal charges related to the killing of animals on his property. Walker alleged

that he had purchased Lots 102 and 129 of Thomas County’s 13th district from

William McMath in 1976. First National Bank of Thomasville, which was now

known as SunTrust, had financed the transaction. Despite the fact that Walker paid

back the bank loan in full, the bank, together with Monroe, conspired to hide the

property deed from Walker and deprive him of his rights as a property owner.

      Apart from asserting that Thomasville officials violated his constitutional

rights by permitting third parties to knock down houses and cut down trees on his

property, Walker did not assert that any particular defendant took a specific act that

deprived him of his constitutional rights. Walker did not mention the following

defendants in the body of the complaint: (1) Rolling; (2) Howard Brooks; (3) the

Superior Court; (4) the Sheriff’s Department; (5) the Magistrate Court; (6) the Tax



                                           4
Assessor’s Office; (7) the Humane Society; (8) the Georgia DOT; (9) the Thomas

County Federal Bank; (10) Bradley; (11) Altman; and (12) Hutchings.

      The docket entry for the filing of Walker’s complaint indicates that he

received a receipt for paying a filing fee of $350. The record does not indicate that

Walker sought or received permission to proceed in forma pauperis.

      The following defendants responded to Walker’s complaint by filing

motions to dismiss under Fed.R.Civ.P. 12(b)(6): (1) the Magistrate Court; (2) the

Sheriff’s Department; (3) the Tax Assessor’s Office; (4) Hutchings; (5) the

Thomas County Federal Savings and Loan Association (“TCFSLA”), which

Walker had misidentified as the “Thomas County Federal Bank”; (6) Thomasville;

(7) Judge Altman; (8) the Superior Court; (9) the Georgia DOT; (10) the Humane

Society; and (11) SunTrust. These defendants generally argued that Walker’s

complaint should be dismissed under Rule 12(b)(6) because he failed to make a

short and plain statement showing that he was entitled to relief, as required by

Fed.R.Civ.P. 8(a)(2).

      Jean Pogue, Joseph Pogue, Cassandra Montgomery, and Everett

Montgomery filed a pro se responsive pleading, in which they asserted that

Walker’s claims against them were too vague to permit them to properly answer

the complaint. The Pogues and the Montgomerys did not, however, indicate that



                                          5
they were seeking dismissal of the complaint.

      Walker responded to the above defendants’ motions by generally reasserting

his contention that they were liable to him for fraud or, in the case of Thomasville,

for the violation of his constitutional rights. In each of his responses to the

motions for dismissal, Walker requested that the court convert these motions into

motions for summary judgment under Fed.R.Civ.P. 56. In addition, he asserted

that the court should provide him with the opportunity to submit evidence in

support of his claims.

      The Monroes, Bradley, Rolling, Williams, and the estate of Howard Brooks

did not file responses to Walker’s complaint.

      The district court entered an order granting the defendants’ motions to

dismiss. The court found that Walker had failed to make specific allegations

against: (1) the Magistrate Court; (2) the Sheriff’s Department; (3) the Tax

Assessor’s Office; (4) TCFSLA; (5) Hutchings; (6) the Humane Society; (7) Judge

Altman; (8) the Superior Court; and (9) the Georgia DOT. Accordingly, the court

determined that Walker’s claims against these defendants did not satisfy the

pleading requirements set forth in Rule 8(a)(2), and dismissed his complaint as to

these defendants under Fed.R.Civ.P. 12(b)(6).

      Addressing the claims against Thomasville, the court determined that,



                                           6
construing the complaint liberally, Walker’s claims against the city were brought

pursuant to 42 U.S.C. § 1983. The court noted that “municipal liability under

§ 1983 exists only when a municipal policy, practice, or the decision of a final

municipal policy maker caused the deprivation of [the] plaintiff’s federally

protected right.” The court determined that Walker’s “vague and conclusory

allegations” failed to implicate such a policy. Accordingly, the court concluded

that Walker’s claims against Thomasville did not rise above the speculative level,

and granted the city’s motion to dismiss. Addressing SunTrust’s motion to

dismiss, the court determined that, while Walker made allegations against

SunTrust, these allegations were “ambiguous, conclusory, and unintelligible.” The

court thus found that Walker’s claims against SunTrust failed to satisfy the

pleading requirements set forth in Fed.R.Civ.P. 8(a)(2).

      The court further reasoned that, even though several defendants had not filed

motions to dismiss, 28 U.S.C. § 1915(e)(2)(B) required it to sua sponte review

Walker’s claims because he was proceeding in forma pauperis. Thus, the court

considered whether dismissal was appropriate as to those defendants who had not

filed motions to dismiss. The court dismissed the claims against Williams, the

Brooks estate, Rolling, and Bradley because Walker failed to make any specific

allegations against them in his complaint.



                                             7
      Regarding the Monroes, the Pogues, and the Montgomerys, the court noted

that Walker had made allegations against these defendants in the letter attached to

his complaint. The court determined, however, that these “ambiguous and

conclusory” allegations failed to raise a right to relief above the speculative level.

In addition, the court determined that it did not possess subject matter jurisdiction

over Walker’s claims against the Monroes, the Pogues, and the Montgomerys

because these were state law claims, and Walker did not allege facts indicating that

the court had diversity jurisdiction. Moreover, because the court had dismissed

Walker’s § 1983 claims, the court declined to exercise supplemental jurisdiction

over Walker’s state law claims against the Monroes, the Pogues, and the

Montgomerys. Accordingly, the court dismissed Walker’s complaint as to all of

the defendants.

      Walker filed a notice of appeal from the district court’s order dismissing his

complaint. Thereafter, Walker filed numerous pleadings requesting that the district

court permit him to engage in discovery. In these pleadings, Walker asserted that

the district court judge who had considered his case was biased against him, and

had violated his constitutional rights by dismissing his complaint.




                                           II.

                                           8
      We liberally construe a pro se litigant’s pleadings. Powell v. Lennon, 914

F.2d 1459, 1463 (11th Cir. 1990). We review a district court’s factual findings for

clear error. Daewoo Motor Am., Inc. v. General Motors Corp., 459 F.3d 1249,

1256 (11th Cir. 2006). We review de novo a district court’s determination that it

lacks subject matter jurisdiction over a claim. Williams v. Chatman, 510 F.3d

1290, 1293 (11th Cir. 2007). We review for abuse of discretion, however, a

district court’s decision not to exercise supplemental jurisdiction over a claim.

Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 738 (11th Cir. 2006). We

may affirm a district court’s judgment based on any ground supported by the

record. Koziara v. City of Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004).

      Where a plaintiff is proceeding in forma pauperis, a district court is required

to sua sponte determine whether the complaint: (1) is frivolous or malicious;

(2) fails to state a claim upon which relief may be granted; or (3) seeks monetary

relief against a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2)(B); See Alba v. Montford, 517 F.3d 1249, 1251-52, n.3 (11th Cir.),

cert. denied, 129 S.Ct. 632 (2008). In addition, a district court may sua sponte

consider whether it has subject matter jurisdiction over a plaintiff’s claims.

Fed.R.Civ.P. 12(h)(3); Williams, 510 F.3d at 1293. A defendant may assert the

defense that the plaintiff’s complaint fails to state a claim upon which relief may be



                                           9
granted by filing a motion under Fed.R.Civ.P. 12(b)(6). See Fed.R.Civ.P. 12(b).

      Subject matter jurisdiction in a federal court may be based upon federal

question jurisdiction or diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Diversity

jurisdiction exists where the plaintiffs and defendants are citizens of different

states, and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332;

MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234, 1239 (11th Cir. 2005) (noting

that “[c]omplete diversity requires that no defendant in a diversity action be a

citizen of the same state as any plaintiff”). “Absent diversity of citizenship, a

plaintiff must present a substantial federal question in order to invoke the district

court’s jurisdiction.” Wyke v. Polk County School Bd., 129 F.3d 560, 566 (11th

Cir. 1997).

      Where a district court possesses original jurisdiction over a plaintiff’s claim

under § 1331, it may exercise supplemental jurisdiction over those state law claims

“that are so related to claims in the action within [the court’s] original jurisdiction

that they form part of the same case or controversy.” 28 U.S.C. § 1367(a). “The

constitutional ‘case or controversy’ standard confers supplemental jurisdiction over

all state claims which arise out of a common nucleus of operative fact with a

substantial federal claim.” Parker, 468 F.3d at 743. Even if a court possesses

subject matter jurisdiction over state law claims by virtue of their close connection



                                           10
to a federal claim, the court may decline to exercise its jurisdiction over the state

law claims where, among other things, the court has dismissed all claims over

which it had original jurisdiction. 28 U.S.C. § 1367(c)(3); Parker, 468 F.3d at 743.

      Under 42 U.S.C. § 1983, a plaintiff may sue an individual who, while acting

under color of state law, deprived him of a constitutional right. 42 U.S.C. § 1983;

Collier v. Dickinson, 477 F.3d 1306, 1307 (11th Cir. 2007). Municipalities and

other local government entities are “persons” within the meaning of § 1983.

Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690,

98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). In order to impose § 1983 liability on

a municipality, a plaintiff must show that: (1) his constitutional rights were

violated; (2) the municipality had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused

the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

      Here, the record provides no support for the district court’s determination

that Walker was proceeding in forma pauperis, because the docket entry for the

filing of his complaint indicates that he paid the filing fee, and the record does not

reflect that he sought or received permission to proceed in forma pauperis.

Accordingly, it appears that the district court clearly erred in finding that Walker

was proceeding in forma pauperis. Based on its erroneous determination of



                                           11
Walker’s filing status, the court applied 28 U.S.C. § 1915(e)(2)(B) to sua sponte

dismiss his claims against those defendants who did not file motions to dismiss –

Williams, Brooks, Rolling, Bradley, the Monroes, the Pogues, and the

Montgomerys. Because Walker was not proceeding in forma pauperis, however,

dismissal under § 1915(e)(2)(B) was improper. Moreover, there is no indication

that a court may sua sponte determine whether a complaint is subject to dismissal

under Rule 12(b)(6) where the plaintiff is not proceeding in forma pauperis. We

note that, while the Pogues and the Montgomerys filed a pro se responsive

pleading, they did not indicate that they sought dismissal of the complaint. As a

result, it does not appear that their motion could be construed as a motion to

dismiss under Fed.R.Civ.P. 12(b)(6).

      Nevertheless, we may affirm the district court’s dismissal of Walker’s

claims against these defendants who did not file a motion to dismiss on the

alternative ground that the court could properly sua sponte dismiss these claims for

lack of subject matter jurisdiction. Because Walker and the defendants were from

Georgia, there was no diversity jurisdiction in this case. Moreover, because

Walker’s complaint primarily asserted only state law fraud claims, the only basis

for federal question jurisdiction in this case was Walker’s claim that Thomasville

city officials violated his constitutional rights. Construing Walker’s complaint



                                          12
liberally, the court properly determined that this allegation constituted a § 1983

claim against a municipality, which provided the court with federal question

jurisdiction under § 1331. The court, however, dismissed this claim because

Walker failed to allege that Thomasville employed a custom or policy that resulted

in the deprivation of his constitutional rights. Because the court dismissed the only

claim over which it had original jurisdiction, it then had discretion to decline to

exercise supplemental jurisdiction over Walker’s state law claims against the other

defendants who did not file a motion to dismiss. As a result, even if the court erred

in sua sponte dismissing these claims under § 1915(e)(2)(B), these claims were

still subject to sua sponte dismissal for lack of subject matter jurisdiction, and we

affirm on this basis.

                                          III.

      Pursuant to Fed.R.Civ.P. 12(d), if a district court considers matters outside

of the pleadings when ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),

then the motion to dismiss must be treated as a motion for summary judgment

under Fed.R.Civ.P. 56. Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116

F.3d 1364, 1371 (11th Cir. 1997). Where a district court considers matters outside

the pleadings, thereby converting the motion to dismiss into a motion for summary

judgment, the court must provide all parties with a reasonable opportunity to



                                           13
present all material that is pertinent to the decision of whether summary judgment

is appropriate. Id. “Under most circumstances, such material would not be part of

the record underpinning a Rule 12(b)(6) ruling.” Daewoo Motor Am., Inc., 459

F.3d at 1266 n.11.

      Here, the district court based its dismissal on its determination that Walker’s

complaint, on its face, did not satisfy the pleading requirements of Fed.R.Civ.P.

8(a)(2), and could not withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

The court did not consider any matters beyond the pleadings in making this

determination. Accordingly, the court did not err by failing to convert the

defendants’ motions to dismiss to motions for summary judgment. For this same

reason, the court did not err by failing to grant Walker a jury trial or otherwise

provide him with the opportunity to submit evidence in support of his claims.

                                          IV.

      In order to prevail on a claim that his right to equal protection has been

violated, a plaintiff must show that he has been treated differently on account of

some form of invidious discrimination. City of Cleburne, Texas v. Cleburne Living

Ctr., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). The

Fourteenth Amendment’s Due Process Clause protects an individual’s substantive

and procedural rights. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en



                                           14
banc). A violation of substantive due process rights occurs where an individual’s

fundamental rights, those “implicit in the concept of ordered liberty,” are infringed.

Id. at 1556 (quotation omitted). Procedural due process rules, on the other hand,

protect an individual from the unjustified deprivation of life, liberty, or property.

Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978).

       Walker’s arguments that the court violated his rights to due process and

equal protection lack merit. The court’s judgment in this case provide no

indication that the court discriminated against Walker on the basis of his race. In

addition, Walker does not otherwise explain how the court violated his

constitutional rights, and the record provides no indication that the court violated

Walker’s fundamental rights, or that its actions resulted in the unjustified

deprivation of life, liberty, or property.

       Finally, we do not consider Walker’s argument that the district court judge

should have recused himself from consideration of Walker’s case, because Walker

did not raise this argument to the district court until after he filed a notice of

appeal. See Ledford v. Peeples, 568 F.3d 1258, 1298 (11th Cir. 2009) (holding that

we generally do not consider arguments raised for the first time on appeal);

Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003) (holding that, “[a]s a general

matter, the filing of a notice of appeal deprives the district court of jurisdiction



                                             15
over all issues involved in the appeal”).

      AFFIRMED.




                                            16
