             Case: 12-14566     Date Filed: 12/23/2013   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14566
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 9:12-cv-80263-KLR



CURTIS SHERROD,

                                                         Plaintiff - Appellant,

                                         versus

THE SCHOOL BOARD OF PALM BEACH COUNTY,

                                                         Defendant - Appellee.

                          ________________________

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

                              (December 23, 2013)

Before HULL, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

      Curtis Sherrod, proceeding pro se, appeals the dismissal of his lawsuit

against his former employer, the School Board of Palm Beach County, Florida (the
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Board), and the district judge’s refusal to recuse from the case. Because the

district judge was not required to recuse and Sherrod’s claims are barred by the

terms of a settlement agreement he signed with the Board, we affirm.

      After several years of litigation over his termination, Sherrod filed a lawsuit

against the Board in 2007 claiming he was retaliated against for exercising his

rights under the First Amendment to the United States Constitution. That suit

culminated in a settlement agreement between the parties, which Sherrod signed on

January 25, 2008. In exchange for $272,425, Sherrod agreed to:

      [R]elease, acquit, satisfy and forever discharge the School [Board] . . . from
      any and all . . . claims of employment discrimination, claims of retaliation,
      [and] . . . any claims under Section 1981 through 1988 of Title 42 of the
      United States Code . . . which Curtis Sherrod, now has, or hereafter can,
      shall or may have against the School [Board] for reason of any matter. . .
      including, but not limited to, any and all matters arising out of or even
      arguably involving employment with the School District, as well as issues
      involving the negotiation and execution of this Agreement.

Sherrod also agreed “not to initiate or pursue any other actions related, either

directly or indirectly, to his employment with the School District,” beyond the case

that was then pending.

      Notwithstanding this agreement, Sherrod, a black male, filed this action

alleging the Board violated his rights under 42 U.S.C. § 1981 by entering into a

more favorable settlement agreement with a white male, Dr. Thomas Elfers, who

had also sued the Board alleging First Amendment violations. Specifically, he

claimed the School Board had ignored his $300,000 settlement offer (before
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ultimately settling for $272,425), but had offered Dr. Elfers $490.000. The Board

moved to dismiss Sherrod’s claims, asserting they were barred by the settlement

agreement he signed, which the Board attached to the motion. Sherrod responded

and shortly thereafter filed a motion claiming the district judge had to recuse

because he had a demonstrated “blind spot” to civil-rights claims. The district

court denied Sherrod’s motion for recusal and granted the Board’s motion to

dismiss, finding that Sherrod’s claims were barred by the plain language of the

settlement agreement he signed in his prior action. This is Sherrod’s appeal.

      We review de novo the dismissal of a complaint for failure to state a claim

upon which relief may be granted, accepting the allegations as true and considering

them in the light most favorable to the plaintiff. Starship Enters. of Atlanta v.

Coweta Cnty., Ga., 708 F.3d 1243, 1252 (11th Cir. 2013). Generally, we look

only to the allegations contained in a complaint to decide if it states a viable claim.

But we may also consider a document attached to a motion to dismiss if it is

“central to the plaintiff’s claim,” and its authenticity is not challenged. Day v.

Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). We also construe a settlement

agreement de novo, applying Florida contract law in this case. Schwartz v. Fla. Bd.

of Regents, 807 F.2d 901, 905 (11th Cir. 1987). Under Florida law, “[w]ords in a

contract are to be given their plain and ordinary meaning, and it is not for the court

to add or subtract any language from the face of a clearly worded agreement.” Id.


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“[O]nce a party accepts the proceeds and benefits of a contract, that party is

estopped from renouncing the burdens the contract places upon him.” Fineberg v.

Kline, 542 So. 2d 1002, 1004 (Fla. Dist. Ct. App. 1988).

       After reviewing its terms, we agree with the district court’s conclusion that

the settlement agreement Sherrod signed bars the claims he makes in this action.

In exchange for consideration, Sherrod released the Board from liability for any

claims against it, including those under 42 U.S.C. § 1981 and those involving the

“the negotiation and execution of” the agreement itself. Moreover, Sherrod does

not contest that he has accepted the benefits he was due under the contract. Thus,

under Florida law, he is “estopped from renouncing” his part of the bargain —

forgoing further litigation relating to his employment with the Board and the

claims that arose from its termination, save those that were ongoing when the

settlement was inked.1 Fineberg, 542 So. 2d at 1004.

       Despite this, Sherrod raises two arguments. First, he contends the Board is

in breach of the express or implied terms of the agreement, and second he argues

the agreement is void ad initio because the disparity with Dr. Elfers’s settlement

1
 Sherrod claimed in his complaint (but not as part of the allegedly illegal conduct forming the
single count in his complaint) and in his brief on appeal that the Board interfered with his
continuing employment before he entered into the settlement agreement. He also now speculates
that the Board’s actions “may have very well played a significant role” in his suspension from a
job in 2009. But Sherrod fails to explain why we should not consider these claims barred by the
settlement agreement. And he did not present either of them to the district court in response to
the Board’s motion to dismiss, so we do not consider them further. See Ramirez v. Sec’y, U.S.
Dept. of Transp., 686 F.3d 1239, 1249 (11th Cir. 2012) (“It is well-settled that we will generally
refuse to consider arguments raised for the first time on appeal.”).
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agreement makes it illegal. But we have no occasion to review this contention.

Nowhere in Sherrod’s complaint, the dismissal of which we are reviewing, did he

allude to any breach. And he did not raise the argument in his response to the

Board’s motion to dismiss. He raised it only in a motion to reconsider the

dismissal of his complaint. The denial of that motion is not properly before us

because it occurred after Sherrod’s notice of appeal and Sherrod did not amend the

notice (or file a new one) to include it. See Fed. R. App. 3(c)(1)(B) (requiring the

notice of appeal to “designate the judgment, order, or part thereof being

appealed”); Weatherly v. Ala. State Univ., No. 12-13414, — F.3d — , 2013 WL

4712727, at *6 (11th Cir. Sept. 3, 2013) (reiterating that a party must file a new or

amended notice of appeal to seek review of a judgment rendered after it has

already filed a notice of appeal). And, in any event, Sherrod concedes he knew of

the actions he claims on appeal constituted breach before he filed his complaint,

but provides us no explanation why he mentioned them for the first time only after

the district court had granted the Board’s motion to dismiss. See Richardson v.

Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (“A motion for reconsideration

cannot be used to . . . raise argument . . . that could have been raised prior to the

entry of judgment.” (internal quotation marks omitted)). Thus, whether the Board

is in breach of the settlement agreement is a question for another day.




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       Nor does Sherrod’s contention that the settlement agreement is void

persuade us that the district court improperly dismissed his complaint. Sherrod

accepted the consideration the Board offered under the agreement, so Florida law

dictates that he is estopped from taking back what he gave in return. Fineberg, 542

So. 2d at 1004. And Sherrod presents no legal authority upon which we could

permit him to escape the release he agreed to simply because he claims the Board

offered an employee of a different race a larger settlement sum. Indeed, in the

settlement, Sherrod specifically gave up the right to assert any claim under 42

U.S.C. § 1981 relating to the agreement’s execution. Having voluntarily entered

into such an agreement, Sherrod cannot now assert § 1981 gives him a cause of

action against the Board based on actions it took before and in relation to settling

with him.

       Finally, the district judge did not abuse his discretion in deciding not to

recuse.2 The only bases for recusal Sherrod identified in the district court or in his

briefing on appeal are rulings the district court made in this case and others. 3 But,

as the Supreme Court has admonished, “judicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.” Liteky v. United States,



2
  See Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004) (“We review for an abuse of
discretion the district court’s denial of a recusal motion.”).
3
  Construing it liberally, we presume Sherrod founded his recusal motion on 28 U.S.C. § 455
because he did not file the affidavit that must accompany a motion filed under 28 U.S.C. § 144.
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510 U.S. 540, 555 (1994). Nothing Sherrod refers us to on appeal could justify

deviation from that general principle.

      For the foregoing reasons, we affirm the district judge’s decision not to

recuse and the dismissal of Sherrod’s complaint for failure to state a claim because

his only claim was barred by the settlement agreement he signed.

      AFFIRMED.




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