                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________
                                                                  FILED
                              No. 07-13693              U.S. COURT OF APPEALS
                          Non-Argument Calendar           ELEVENTH CIRCUIT
                                                              March 19, 2008
                        ________________________
                                                           THOMAS K. KAHN
                                                                 CLERK
                    D. C. Docket No. 06-60856-CV-PAS

DR. SUSAN LEE MERCER,
                                                      Plaintiff-Appellant,

                                   versus

NORTH BROWARD HOSPITAL DISTRICT,
d.b.a. Broward Medical Center,
SUZANNE RUSHING, in her official and personal capacity,
JEAN GORDON,
PHOENIX PHYSICIANS LLC,
                                                   Defendants-Appellees.

                        ________________________

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

                              (March 19, 2008)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Susan Lee Mercer appeals from the district court’s final judgment in favor of

North Broward Hospital District d.b.a. Broward General Medical Center (“NBHD”)

in Mercer’s action, filed pursuant to 42 U.S.C. § 1983, alleging her constitutional

rights were violated when she was involuntarily detained at a NBHD facility,

pursuant to Florida’s Baker Act, Fla. Stat. § 493.453 et seq. The district court

dismissed the complaint as to NBHD, without prejudice. After Mercer filed an

amended complaint, the district court again dismissed the complaint as to NBHD, this

time with prejudice, based on Mercer’s failure to allege that NBHD had adopted a

practice or policy that led to the violation of Mercer’s constitutional rights.

      In this appeal, Mercer raises three claims relating to the district court’s

dismissal of NBHD and subsequent disallowance of a second amended complaint to

rename NBHD as a defendant: (1) that the district court erred when, prior to the

completion of discovery, it dismissed the amended complaint with prejudice as to

NBHD for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure; (2) that the district court erred by denying Mercer’s motion for leave

to file a second amended complaint, for the purpose of asserting claims against

NBHD; and (3) that the district court erred by denying Mercer’s post-judgment

motion for relief from judgment, filed pursuant to Rule 60(b) of the Federal Rules of

Civil Procedure, in which Mercer sought to amend the complaint to rename NBHD

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as a defendant. After thorough review of the record and careful consideration of the

parties’ briefs, we affirm.

      The parties are familiar with the underlying facts and procedural history, and

we only summarize them here. On June 14, 2006, Mercer, who initially was

proceeding pro se, filed this lawsuit against NBHD and certain individuals based on

her involuntary detention, which lasted four hours, in a psychiatric detention room

at one of NBHD’s facilities. Mercer, who had been in a car accident a week before

the incident giving rise to this suit, had presented herself to emergency room staff for

the purposes of updating her medical chart, getting a “sputum culture plated” and

providing insurance billing information. Mercer subsequently was detained for four

hours, after Dr. Jean Gordon signed a certificate indicating that he had examined

Mercer and certifying that she be involuntarily detained under the Baker Act. She

filed this cause of action alleging her constitutional rights were violated when NBHD

personnel failed to follow the requirements of the Baker Act prior to detaining her.

      The district court dismissed the complaint as to NBHD without prejudice,

directing Mercer that in order to state a § 1983 claim against NBHD in its official

capacity, she was required to “allege facts showing that NBHD adopted a widespread

practice or policy that led to the violation of her constitutional rights, and that those

in control of NBHD had actual or constructive knowledge of the policy or practice.”

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In its dismissal order, the district court further explained it had imposed the foregoing

requirement “because employers/supervisors cannot be held liable under 42 U.S.C.

§ 1983 for the conduct of their employees, merely because an employment

relationship exists[.]”

      On October 16, 2006, the district court entered its Scheduling Order, pursuant

to Rule 16 of the Federal Rules of Civil Procedure. The Scheduling Order ended

discovery on June 1, 2007, set the pretrial conference for October 16, 2007, and

scheduled the trial for November 13, 2007. Almost six weeks after entry of the

Scheduling Order, Mercer moved for an extension of time in which to file an

amended complaint, stating that she had retained counsel to represent her. The

district court granted the extension and directed Mercer to file the amended complaint

on or before December 11, 2006.

      On December 8, 2006, Mercer filed an amended complaint, in which she again

failed to allege practice or policy, or actual or constructive knowledge, on the part of

NBHD. Thereafter, the district court dismissed the claims against NBHD with

prejudice. Mercer moved for reconsideration, admitting that she “is presently unable

to show the existence of any facts supporting allegations that [NBHD] had adopted

a policy or practice that led to the violation of Plaintiff’s Constitutional rights” but

requesting the district court to modify its dismissal in order to allow Mercer to

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conduct discovery on whether such a policy or practice existed. On February 22,

2007, the district court denied reconsideration, noting: “Plaintiff should have had a

factual basis for her lawsuit against NBHD before filing it. . . . More than four

months ago, this Court specifically advised Plaintiff that a failure to allege facts

showing the NBHD adopted a widespread practice or policy that led to the violation

of her constitutional rights and that those in control of NBHD had actual or

constructive knowledge of the policy or practice would be fatal to her civil rights

claim against NBHD. Plaintiff admittedly has not and cannot do so.”

      After Mercer and the remaining defendant, Suzanne Rushing, had completed

discovery and attended mediation, Mercer again attempted to amend the complaint,

this time to rename NBHD, in place of Rushing, as the defendant. In her motion for

relief from judgment, filed pursuant to Rule 60(b), Mercer asserted that discovery had

revealed “a policy, custom, or practice” relating to NBHD’s detention of patients

prior to compliance with the Baker Act’s requirements. The district court disagreed.

The court concluded Mercer was entitled to no relief under Rule 60(b) because the

information gleaned during discovery was not “new evidence,” nor did it establish the

existence of a custom or policy. This appeal followed.

      We review the district court’s order dismissing Mercer’s amended complaint

for failure to state a claim de novo. See Harris v. IVAX Corp., 182 F.3d 799, 803

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(11th Cir. 1999). We review the denial of a motion to amend a complaint for abuse

of discretion. Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292,

1300 (11th Cir. 2003). “Although ‘[l]eave to amend shall be freely given when

justice so requires,’ a motion to amend may be denied on ‘numerous grounds’ such

as ‘undue delay, undue prejudice to the defendants, and futility of the amendment.’”

Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000)

(quoting Abramson v. Gonzalez, 949 F.2d 1567, 1581 (11th Cir. 1992)). Moreover,

where, as here, the requests to amend were made after the district court had entered

its scheduling order and the deadlines set forth therein had passed, Mercer was

required to demonstrate “good cause” under Rule 16(b) of the Federal Rules of Civil

Procedure. See Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293,

1299 (11th Cir. 2007). We likewise review the denial of Mercer’s Rule 60(b) motion

for abuse of discretion. See Am. Bankers Ins. Co. of Fla. v. Northwestern Nat’l Ins.

Co., 198 F.3d 1332, 1338 (11th Cir. 1999).

      First, Mercer challenges the district court’s dismissal of NBHD with prejudice,

for failure to state a claim. In essence, Mercer asserts that because she alleged facts

supporting a violation of the Baker Act by NBHD personnel, her complaint was

sufficient to state a claim against NBHD under § 1983, despite that she asserted no

policy, practice, or custom resulting in a violation of her constitutional rights. She

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also suggests the district court erred by denying her request to conduct discovery to

learn whether such a policy, practice or custom existed.

      Simply put, NBHD’s role as the operator of the facility where Mercer was

detained, or even as Mercer’s health care provider, would not, alone, subject NBHD

to liability under the doctrine of respondeat superior, in the absence of some evidence

of a policy or custom that would subject NBHD to § 1983 liability. Monell v. Dept.

of Social Serv., 436 U.S. 658, 691 (1978). And our de novo review of the record

reveals no material issue of fact as to whether NBHD had such a policy, or that such

a policy led to the violation of Mercer’s constitutional rights. Accordingly, the

district court did not err by dismissing the amended complaint as to NBHD, with

prejudice.

      We likewise are unpersuaded by Mercer’s argument concerning her next

attempt to rename NBHD as a defendant, this one following the completion of

discovery and mediation with Defendant Rushing. Pursuant to Rule 60(b), a court,

on motion and upon such terms as are just, may relieve a party from a final judgment,

order, or proceeding for the following reasons:

      (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
      discovered evidence which by due diligence could not have been
      discovered in time to move for a new trial under Rule 59(b); (3) fraud
      (whether heretofore denominated intrinsic or extrinsic),
      misrepresentation, or other misconduct of an adverse party; (4) the

                                          7
      judgment is void; (5) the judgment has been satisfied, released, or
      discharged, or a prior judgment upon which it is based has been reversed
      or otherwise vacated, or it is no longer equitable that the judgment
      should have prospective application; or (6) any other reason justifying
      relief from the operation of the judgment. The motion shall be made
      within a reasonable time, and for reasons (1), (2), and (3) not more than
      one year after the judgment, order, or proceeding was entered or taken.

Fed. R. Civ. P. 60(b). A party alleging newly discovered evidence as a basis for a

Rule 60(b) motion must demonstrate that (1) the evidence is newly discovered since

the district court’s decision; (2) she exercised due diligence to discover the evidence;

(3) the evidence is not cumulative or impeaching; (4) the evidence is material; and (5)

the evidence would produce a new result. Willard v. Fairfield Southern Co., Inc., 472

F.3d 817, 824 (11th Cir. 2006).

      Here, the district court noted that the evidence on which Mercer relied in her

60(b) motion was not newly discovered and would not have changed the district

court’s conclusion on whether to allow Mercer to file a second amended complaint

to rename NBHD a defendant. We discern no abuse of discretion in the district

court’s decision.

      AFFIRMED.




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