           Case: 12-14160   Date Filed: 04/22/2013   Page: 1 of 7




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14160
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:12-cv-00158-TCB



RAJESH M. PATEL,
MD,

                                                           Plaintiff-Appellant,

                                  versus

GEORGIA DEPARTMENT OF BEHAVIORAL
HEALTH AND DEVELOPMENTAL DISABILITIES,

                                                          Defendant-Appellee.

                      ________________________

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

                             (April 22, 2013)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       Rajesh M. Patel appeals pro se from the district court’s dismissal of his Title

VII and Age Discrimination in Employment Act (“ADEA”) complaint against the

Georgia Department of Behavioral Health and Developmental Disabilities (“the

Department”), alleging discrimination and retaliation based on race, sex, national

origin, and age. Patel alleged that the Department fired him after he complained

about not receiving a raise and in retaliation for Patel’s refusal to work the night

shift while he was on approved jury duty leave.

       The district court adopted the magistrate judge’s Report and

Recommendation (“R&R”), which recommended dismissal of Patel’s s Title VII

complaint as barred by the statute of limitations because it was filed more than 90

days after Patel received right-to-sue letters from the Equal Employment

Opportunity Commission (“EEOC”) on February 3, 2011 and September 29, 2011.

Additionally the district court concluded, in accordance with the R&R, that Patel’s

ADEA claim was due to be dismissed as barred by the Eleventh Amendment. 1

                                                I.

       In a Title VII suit, a party must file his complaint within 90 days of

receiving an EEOC notice of his right to sue. 42 U.S.C. § 2000e-5(f)(1); Green v.

       1
          Patel does not argue on appeal that the district court erred in dismissing his ADEA
claim. Therefore, he has abandoned on appeal any argument relating to that claim, and the
district court’s dismissal of that claim is affirmed. See United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003).
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Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002). Patel does not

dispute that his present employment discrimination complaint was not filed within

90 days of either of the EEOC’s right-to-sue letters, but argues that the time limit

should be equitably tolled based on the pendency of his previous and separately

filed employment discrimination complaint. After receiving the February 3, 2011

right-to-sue letter, Patel timely filed a Title VII complaint alleging, as he does in

the present suit, that his firing was based on race, sex, national origin, and

retaliation. Patel later sought leave to amend his complaint when he received the

September 29, 2011 EEOC right-to-sue letter. The district court eventually

dismissed Patel’s complaint without prejudice, denying Patel’s request for leave to

amend his complaint on the basis of futility, which decision we affirmed in an

unpublished decision, Patel v. Ga. Dep’t BHDD, 485 Fed. App’x. 982 (11th Cir.

2012) (“Patel I”).

       Patel seems to argue that he is entitled to equitable tolling of the

untimeliness of his current complaint because he timely filed and promptly pursued

his rights in Patel I and that his failure to state a plausible basis for relief in Patel I

is due to the failure of the Department and the EEOC to give him documents. A

court may toll a statute of limitations only if it finds that an inequitable event

prevented the plaintiff from filing a timely action, Justice v. United States, 6 F.3d

1474, 1479 (11th Cir. 1993), and the plaintiff has the burden in establishing the


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grounds for equitable tolling, Bost v. Fed. Express Corp., 372 F.3d 1233, 1242

(11th Cir. 2004).

       Here, we do not find that Patel has met his burden in showing that some

inequitable event prevented him from raising the claims in this suit in a timely

manner and thus conclude that the district court did not commit reversible error in

denying equitable tolling. 2 The fact that Patel had initially filed a timely

complaint, by itself, does not warrant equitable tolling based on that complaint’s

dismissal without prejudice. Justice, 6 F.3d at 1478-79 (explaining that as a

general rule, the filing of a lawsuit that the court subsequently dismissed without

prejudice does not automatically toll the statute of limitations). In addition, that

the Department or the EEOC did not give Patel unspecified records does not

constitute an inequitable event that precluded him from being able to state a claim

upon which relief could be granted so as to prevent the dismissal of his complaint

in Patel I. We cannot see how Patel would not have been aware of the facts

necessary to support a claim of discrimination and retaliation that he alleges were

committed against him. Patel has pointed to nothing more than his failure to allege


       2
          We note that the magistrate judge’s basis for recommending the denial of equitable
tolling, as adopted by the district court, is based in part on a clearly erroneous view that Patel
neither sought leave to amend his complaint in Patel I nor objected to the magistrate judge’s
report and recommendation in Patel I. However, because Patel’s diligence alone is not enough
to merit equitable tolling, the magistrate judge’s factual error does not constitute reversible error.
See Justice, 6 F.3d at 1479–80. See also Turlington v. Atlanta Gas Light Co., 135 F.3d 1428,
1433 n.9 (11th Cir. 1998) (explaining that this Court may affirm the district court on any ground
supported by the record).
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facts sufficient to grant relief in Patel I to suggest that he is entitled to equitable

tolling. Therefore, we affirm the district court’s dismissal of Patel’s Title VII

complaint for his failure to file it in a timely manner.

                                            II.

       Patel further argues that the district court failed to address all of the claims

that he raised in his complaint. Specifically, Patel argues that, in his complaint, he

raised issues under the Fourteenth Amendment, Title IV’s Healthcare Quality

Improvement Act (“HCQIA”), and Georgia state law and Department policy,

including that the Department failed to give him a required hearing before firing

him. The district court’s order dismissing the case is silent regarding all of these

claims, despite Patel’s specific objection to the district court that the magistrate

judge in his R&R failed to address these claims.

        Fed. R. Civ. P. 8(a)(2) states that a “pleading that states a claim for relief

must contain: . . . a short and plain statement of the claim showing that the pleader

is entitled to relief.” In order to survive a Rule 12(b)(6) motion to dismiss, a

complaint must present more than labels and conclusions or a “formulaic recitation

of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). A plaintiff must allege enough facts to state a claim that is “plausible

on its face.” Id. at 570. However, when considering a motion to dismiss pro se

pleadings, we must bear in mind that such pleadings are held to a less stringent


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standard than counseled pleadings, and are construed liberally. Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).

      Giving Patel’s pro se complaint a liberal reading, we conclude that he did at

least attempt to raise the separate claim that firing him without a hearing violated

his rights arising under (1) the due process clause of the Fourteenth Amendment,

(2) the HCQIA, and (3) state law and Department policy. Claim #3 of his

complaint begins with “This title VII and ADEA ‘discrimination and retaliation’ as

well as ‘Defendant’s denial of Dr. Patel’s rights to the hearing pursuant to the

provisions of HCQIA Title IV, U.S. Constitution 14th Amendment and GRH-

Atlanta Medical Staff By-Laws’ took place at Georgia Regional Hospital-Atlanta.”

(emphasis added). To the extent that Patel’s complaint can be read to raise a claim

under state law and Department policy, he appears to argue that: (1) he received

positive performance reviews, required to be given by O.C.G.A. § 45-20-21, but

was still treated unfairly, in violation of the policy statement contained in O.C.G.A.

§ 45-20-1; and (2) pursuant to the Department’s medical staff bylaws, which are

authorized under O.C.G.A. § 31-7-140, he was entitled to a hearing before being

fired. Likewise, he arguably has alleged that his Fourteenth Amendment due

process rights were violated when he was terminated without a hearing. Because

both the magistrate judge and district court judge failed to address the Fourteenth

Amendment and state law claims, we remand these claims to the district court.


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      However, Patel cannot have raised a valid claim under the HCQIA, because

this Court has held that no private cause of action exists under that act. Bok v.

Mutual Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir. 1997) (holding that

nothing explicitly or impliedly provides for a private cause of action under the

HCQIA). Accordingly, we see no need to remand this claim, even though it was

not addressed below, and affirm the dismissal of Patel’s complaint to the extent

that it attempted to raise a Title IV HCQIA claim.

                                          III.

      Finally, Patel argues that the magistrate judge erred in denying him a hearing

under Fed. R. Civ. P. 12(i) and we should remand the case for the hearing.

However, because Patel did not object to that ruling before the district judge, he

waived his ability to appeal that order. Smith v. Sch. Bd. of Orange Cnty., 487 F.3d

1361, 1365 (11th Cir. 2007) (holding that a party that does not file a timely

objection to a magistrate judge’s order to the district court waives his right to

appeal such an order).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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