           Case: 12-13559   Date Filed: 03/11/2013   Page: 1 of 12

                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13559
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cv-22505-JEM



NICOLAS A. MANZINI,

                                                            Plaintiff-Appellant,

                                  versus

THE FLORIDA BAR,
JENNIFER FALCONE MOORE,

                                                        Defendants-Appellees.

                       ________________________

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

                             (March 11, 2013)

Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.

PER CURIAM:
              Case: 12-13559     Date Filed: 03/11/2013    Page: 2 of 12

      Nicolas Manzini, a disbarred attorney proceeding pro se, appeals the district

court’s dismissal of his amended civil rights complaint against Jennifer Moore, an

attorney for the Florida Bar. Manzini contends that the district court erred in

concluding that Moore was entitled to qualified immunity. He also contends that

the court erred by dismissing his amended complaint prematurely and not allowing

him leave to further amend that complaint.

                                              I.

      Manzini became the subject of disciplinary proceedings by the Florida Bar

in 2009 and 2010 when four separate grievances were filed against him. One of

those grievances was evidently filed by The Courts at Doral Isles Condominium

Association (“the Condominium Association”), one of Manzini’s clients. On

March 12, 2010, without Manzini’s knowledge, Moore sent the following e-mail to

the Condominium Association:

      I will go into details of the situation with you as soon as I am at liberty
      to do so. Suffice it to say, regardless of whether you had withdrawn
      your complaint, Mr. Manzini’s position vis-à-vis the Florida Bar
      would have remained the same.

On March 15 Manzini consented to his own disbarment, and on March 18 Moore

sent another e-mail to the Condominium Association without Manzini’s

knowledge:

      Hello. I can report to you that Mr. Manzini has tendered his consent
      to be disbarred from the Florida Bar based on his admitted failure to
      preserve client funds in trust and his failure to apply those funds to the
                                          2
                Case: 12-13559        Date Filed: 03/11/2013       Page: 3 of 12

       purpose for which they were entrusted to him. Subject to approval of
       the Florida Board of Governors, the disbarment will be submitted to
       the Florida Supreme Court for their ultimate order of disbarment. I
       am attaching a client security fund claim form (and explanatory
       information) which you and your organization may submit to attempt
       to recover funds which may have been misappropriated. I will keep
       you informed as to the final disposition of this matter.

       On March 23 the Florida Bar’s Board of Governors accepted Manzini’s

disbarment. 1 On March 26, eight days after Moore’s last e-mail, the Condominium

Association sued Manzini and his law firm in state court. That same day, the judge

assigned to hear that case issued an ex parte injunction freezing all of Manzini’s

assets including his personal, operating, and trust bank accounts. That injunction

was lifted on April 9, two weeks after it was entered.

       Manzini then sued the Florida Bar and Moore under 42 U.S.C. § 1983,

alleging that they had violated his civil rights while acting under color of state law.

He also filed a motion to proceed in forma pauperis, which the district court

granted. After the Bar and Moore filed a motion to dismiss, Manzini amended his

complaint to allege three separate counts. Only Count 1 is at issue in this appeal. 2

In that count, Manzini alleged that Moore’s second e-mail to the Condominium

Association amounted to common law libel because he had never admitted that he

       1
           The Supreme Court of Florida approved Manzini’s disbarment on April 1, 2010 and
gave him 30 days to wind up his practice and notify his clients in order to protect their interests.
         2
           Manzini did not appeal the district court’s dismissal of Count 2, alleging that Moore
violated his Sixth Amendment rights by providing information about his disbarment to a judge in
a civil case. Appellant’s Br. at 7. Manzini also conceded in his brief that he abandoned Count 3
of his amended complaint, as well as all of his claims against the Florida Bar, in the district
court. Appellant’s Br. at 7.
                                                 3
              Case: 12-13559     Date Filed: 03/11/2013    Page: 4 of 12

failed to preserve client funds in trust or failed to apply those funds to the purpose

for which they were entrusted to him. Manzini further alleged that because of

Moore’s e-mail, the Condominium Association had sued him in state court, which

led to the state court’s order freezing all of his bank accounts without any notice to

him, which effectively put his law firm out of business during a time when he had

an obligation to wind up his affairs. Therefore, Manzini alleged, he was deprived

of constitutional rights, although he did not specify which ones.

      Moore filed a motion to dismiss Manzini’s amended complaint on the

grounds that Manzini failed to state a federal cause of action sufficient to vest the

court with subject matter jurisdiction and that Manzini’s claims were barred by

absolute immunity under the Eleventh Amendment. Moore also asserted the

defense of qualified immunity for the first time in her reply to Manzini’s

opposition to the motion to dismiss. Manzini moved to strike the part of Moore’s

reply memorandum that asserted qualified immunity, arguing that she could not

raise that defense for the first time in reply. Moore then filed a motion to stay all

discovery in the case until the court ruled on the motion to dismiss, and the court

granted that motion.

      The district court referred the case to a magistrate judge, who recommended

that Moore’s motion to dismiss be granted. The magistrate judge concluded that

Manzini’s claims against Moore in her official capacity were barred by absolute


                                           4
              Case: 12-13559    Date Filed: 03/11/2013   Page: 5 of 12

immunity under the Eleventh Amendment, and that in her individual capacity

Moore was entitled to qualified immunity as to Count 1 because she was acting

within her discretionary authority, and because Manzini failed to show how any of

Moore’s actions violated his constitutional rights. The magistrate judge also

recommended denying Manzini’s motion to strike, reasoning that the court could

properly consider the qualified immunity issue sua sponte under 28 U.S.C. §

1915(e)(2), which governs proceedings in forma pauperis, notwithstanding

Moore’s failure to raise that defense in her motion to dismiss.

      Manzini objected to the report and recommendation, arguing that the district

court could not dismiss his complaint sua sponte, that the magistrate judge should

have granted him leave to amend his complaint, and that Moore’s communications

with the Condominium Association were not within her discretionary authority.

Manzini further argued that the magistrate judge erred in finding that he had not

identified any of Moore’s actions that had amounted to a deprivation of his

constitutional rights. Specifically, he argued that Moore’s e-mails to his former

client violated his property interests under the Due Process Clause of the

Fourteenth Amendment.

      The district court adopted the magistrate judge’s report and recommendation

and dismissed Manzini’s amended complaint. The court reasoned that it had the

responsibility under 28 U.S.C. § 1915(e)(2) to dismiss sua sponte any in forma


                                          5
              Case: 12-13559      Date Filed: 03/11/2013   Page: 6 of 12

pauperis claims seeking monetary relief against a defendant immune from such

relief. It also agreed that Moore was entitled to qualified immunity, and that

Manzini had not shown good cause as to why he should have been given a second

opportunity to amend his complaint. This is Manzini’s appeal.

                                          II.

      Manzini contends that the district court erred in dismissing his complaint on

the grounds that Moore was entitled to qualified immunity. “We review de novo a

district court’s decision to grant or deny the defense of qualified immunity on a

motion to dismiss, accepting the factual allegations in the complaint as true and

drawing all reasonable inferences in the plaintiff’s favor.” Dalrymple v. Reno, 334

F.3d 991, 994 (11th Cir. 2003).

                                          A.

      The doctrine of qualified immunity provides “complete protection for

government officials sued in their individual capacities as long as their conduct

violates no clearly established statutory or constitutional rights of which a

reasonable person would have known.” Lee v. Ferraro, 284 F.3d 1188, 1193–94

(11th Cir. 2002) (quotation marks omitted). “The immunity protects all but the

plainly incompetent or those who knowingly violate the law.” Jordan v. Mosley,

487 F.3d 1350, 1354 (11th Cir. 2007) (quotation marks omitted). A public official

asserting qualified immunity “must first prove that [she] was acting within the


                                           6
              Case: 12-13559     Date Filed: 03/11/2013   Page: 7 of 12

scope of [her] discretionary authority when the allegedly wrongful acts occurred.”

Lee, 284 F.3d at 1194. In determining whether a public official was acting within

her discretionary authority, we ask: (1) whether the official was performing a

function that, “but for the alleged constitutional infirmity,” would have fallen

within her “legitimate job description,” and (2) whether that function was carried

out “through means that were within [her] power to utilize.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1265–66 (11th Cir. 2004).

      Manzini argues that Moore’s second email to the Condominium Association

was not within her discretionary authority because no disciplinary proceedings

were pending against him at the time of the email. We disagree. As counsel for

the Florida Bar, Moore’s duties included communicating case developments to

complaining parties. Cf., Rules Regulating the Florida Bar 3-7.4(f) (requiring bar

counsel to assist grievance committee at its request by notifying complainants and

respondents of committee actions); Rule 3-7.4(j)(2) (requiring bar counsel to notify

complainant and respondent when the grievance committee finds no probable

cause); Rule 3-7.4(k) (requiring bar counsel to submit a letter report to complainant

and respondent when the grievance finds no probable cause); Rule 3-7.5(d)

(requiring bar counsel to notify complainant and respondent of actions by the

Board of Governors). Manzini has not cited any authority, nor have we found any,

to suggest that bar counsel’s duty to communicate is limited to the time when a


                                          7
              Case: 12-13559     Date Filed: 03/11/2013    Page: 8 of 12

formal disciplinary proceeding is pending. Because the Condominium Association

had filed a complaint against Manzini, Moore’s communications with it fell within

her “legitimate job description,” and those communications about case

developments were carried out “through means that were within [her] power to

utilize.” See Holloman, 370 F.3d at 1265–66.

      Because Moore established that she was acting within her discretionary

authority, the burden shifts to Manzini to show that: (1) the facts alleged

demonstrate that Moore’s conduct violated a constitutional right; and (2) at the

time of the violation, the constitutional right was clearly established. Lee, 284

F.3d at 1194. Manzini argues that Moore’s emails caused his client to sue him in

state court, which then caused the state court to freeze his bank accounts, which

amounted to a deprivation of his property and liberty interests.

      The Due Process Clause of the Fourteenth Amendment provides that no state

shall “deprive any person of life, liberty, or property, without due process of law.”

U.S. Const. amend. XIV, § 1. A violation of either procedural or substantive due

process protections may form the basis for a suit under 42 U.S.C. § 1983.

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

      To state a claim for a procedural due process violation, Manzini must allege

(1) “a deprivation of a constitutionally-protected liberty or property interest,” (2)

“state action,” and (3) “constitutionally inadequate process.” Cryder v. Oxendine,


                                           8
              Case: 12-13559     Date Filed: 03/11/2013   Page: 9 of 12

24 F.3d 175, 177 (11th Cir. 1994). Manzini must also establish an “affirmative

causal connection between [Moore’s] acts or omissions and the alleged

constitutional deprivation.” Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1165

(11th Cir. 2005). The alleged constitutional deprivation in this case is the freezing

of Manzini’s bank accounts for two weeks. Manzini argues that Moore caused that

deprivation because her emails amounted to the tort of defamation and caused his

client to sue him in state court, which caused the state court to freeze his bank

accounts, which caused a deprivation of his property and liberty interests. But

even assuming that Moore’s email “caused” the Condominium Association to sue

Manzini in state court, the decision to freeze his bank accounts was made by a state

court judge after independently reviewing all the evidence submitted by the

Condominium Association in that case. The decision of that state court judge

breaks the chain of causation between Moore’s actions and any alleged

constitutional violations. Cf. Whiting v. Traylor, 85 F.3d 581, 586 n.10 (11th Cir.

1996) (noting that in § 1983 malicious prosecution actions, the arresting officers

will often “not be responsible for the continuation of the prosecution because the

prosecutor (or some other factor) will break the causal link between [the arresting

officer’s] conduct and plaintiff’s injury”).

      To state a claim for a substantive due process violation, a person must show

that their fundamental rights—those “implicit in the concept of ordered liberty”—


                                           9
               Case: 12-13559       Date Filed: 03/11/2013      Page: 10 of 12

have been infringed. McKinney, 20 F.3d at 1556. Whatever right Manzini may

have to not having a state court enter an order freezing his bank accounts for two

weeks, that right is certainly not a fundamental one. He has therefore failed to

state a substantive due process claim. 3

                                               B.

       Manzini also contends that the dismissal of his amended complaint on

qualified immunity grounds was premature because he did not have a “meaningful

opportunity” to respond to Moore’s defense of qualified immunity, which she

raised in a reply memo in support of her motion to dismiss. We disagree. In her

report and recommendation, the magistrate judge reasoned that the district court

could reach the issue of qualified immunity even though Moore raised that issue

for the first time in a reply memorandum. See 28 U.S.C. § 1915(e)(2) (mandating

that the Court sua sponte dismiss in forma pauperis claims for monetary relief that

are brought against a defendant who is immune from such relief). Manzini had the

opportunity to respond to Moore’s argument by objecting to that report and

recommendation, and he did so.

       Manzini further contends that the dismissal of his amended complaint on

qualified immunity grounds was premature because discovery had been stayed by

the district court shortly after Moore filed her reply asserting the defense of

       3
         Because the facts alleged by Manzini do not amount to a constitutional violation, we do
not reach the question of whether any constitutional rights were clearly established.
                                               10
             Case: 12-13559    Date Filed: 03/11/2013    Page: 11 of 12

qualified immunity. As we have already discussed, Manzini cannot show a

constitutional violation because the independent action of the state court judge

broke the chain of causation between Moore’s email and any alleged procedural

due process violation, and because Moore did not violate any fundamental right.

No amount of discovery could change that. Manzini also argues that because

“qualified immunity is an affirmative defense,” that issue should have been

decided at the summary judgment stage and not on a motion to dismiss, but he is

wrong. See, e.g., Nolen v. Jackson, 102 F.3d 1187, 1191 (11th Cir. 1997)

(reversing the district court’s denial of defendant’s motion to dismiss on grounds

of qualified immunity).

      Finally, Manzini contends that the district court should have permitted him

to further amend his complaint. Under Federal Rule of Civil Procedure 15(a), a

court should “freely give leave [to amend] when justice so requires.” Fed. R. Civ.

P. 15(a)(2). However, a district court need not allow an amendment “where

amendment would be futile.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th

Cir. 2005). The problem with Manzini’s amended complaint was that it failed to

show how Moore’s e-mail violated his constitutional rights. And there was no way

for Manzini to further amend his complaint to avoid that problem or the resulting

conclusion that Moore is entitled to qualified immunity. He cannot make out a

claim for a procedural due process violation because the chain of causation


                                         11
             Case: 12-13559    Date Filed: 03/11/2013   Page: 12 of 12

between Moore’s action and any alleged deprivation of property was cut off by the

independent actions of a state court. He also cannot make out a claim for a

substantive due process violation because Moore’s e-mail did not violate any

fundamental right.

      AFFIRMED.




                                        12
