            Case: 15-13322   Date Filed: 12/07/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13322
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cv-03346-MHC



CYNTHIA NUNEZ COLLIER,

                                                            Plaintiff-Appellant,

                                     versus

R.L. BUTCH CONWAY, Sheriff,

                                                           Defendant-Appellee.

                       ________________________

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

                             (December 7, 2016)

Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Cynthia Nunez-Collier, proceeding pro se, appeals the dismissal of her

amended complaint against Sheriff R. L. Butch Conway, for failure to state a claim

upon which relief may be granted. Collier claims that Conway violated her

substantive and procedural due process rights pursuant to 42 U.S.C § 1983 and

O.C.G.A. § 36-33-4 when he ordered his deputies to evict her from her home. On

appeal, Collier argues that the district court erred in dismissing her complaint

because (1) her state law claim is applicable to Conway because he is a county

sheriff and thus a municipal officer, (2) she sufficiently alleged facts to prove

violations of her procedural due process rights, and (3) Conway was not entitled to

qualified immunity because he was acting outside the scope of his discretionary

authority. Upon review of the record and parties’ briefs, we affirm.

      We review “the district court’s grant of a motion to dismiss under Fed. R.

Civ. P. 12(b)(6) for failure to state a claim” de novo and accept the factual

allegations therein as true, “construing them in the light most favorable to the

plaintiff.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per

curiam). Dismissal is appropriate if the complaint, on its face, fails to state a

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

1949 (2009). We hold pro se pleadings to a lesser standard than attorney-drafted

pleadings and construe them liberally. Hughes v. Lott, 350 F.3d 1157, 1160 (11th

Cir. 2003).


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                                          I.

      Section 1983 does not create any substantive rights, but instead “provides a

remedy for deprivations of federal statutory and constitutional rights.” Almand v.

DeKalb County, 103 F.3d 1510, 1512 (11th Cir. 1997). Proceeding under § 1983

requires a plaintiff to show deprivation “of a federal right by a person acting under

color of state law.” Id. at 1513.

      As an initial matter, Collier has abandoned any argument that the district

court erred in dismissing her substantive due process claim by failing to address it

in the brief. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per

curiam). And, the district court did not err in dismissing Collier’s procedural due

process claim against Conway. Collier claims Conway violated her procedural due

process rights because his officers evicted her while a dispossessory action was

pending on appeal in state court.

      A procedural due process violation is only cognizable under § 1983 “when

the state refuses to provide a process sufficient to remedy the procedural

deprivation.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc).

Not only did adequate state remedies exist, Collier availed herself of them prior to

this appeal when she prevailed in her first dispossessory action. Georgia law

allows for a judgment in a dispossessory action to be appealed and provides for a

supersedeas only after the filing of a notice of appeal and payment of costs


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assessed in the trial court. O.C.G.A. § 44-7-56. Collier never alleged that she paid

the required fees that were assessed in the trial court, which are necessary for her

to remain in possession of the premises while the dispossessory action is on appeal.

She cannot now rely on her own failure to take advantage of the available state

remedies as the basis for her procedural due process claim. See Cotton v. Jackson,

216 F.3d 1328, 1331 (11th Cir. 2000) (per curiam). Because Collier failed to state

a plausible procedural due process claim, we decline to address whether the district

court properly concluded that Conway was entitled to qualified immunity for the

claims against him in his individual capacity.


                                         II.

      Collier also argues that § 36-33-4 is applicable to Conway even though he is

a county sheriff and not a municipal officer. Section 36-33-4 provides that

“[m]embers of the council and other officers of a municipal corporation shall be

personally liable to one who sustains special damages as the result of any official

act of such officers if done oppressively, maliciously, corruptly, or without

authority of law.” O.C.G.A. § 36-33-4. Section 36-30-1 defines “municipal

corporations” as being synonymous with “city,” “town,” “municipality,” or

“village”. O.C.G.A. § 36-30-1 (internal quotation marks omitted). The Georgia

Supreme Court has distinguished counties from municipalities, finding that

counties are subdivisions of the State government, while “municipalities are

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creatures of the legislature,” whose “existence may be established, altered,

amended, or utterly abolished by the legislature.” Troup Cty. Elec. Membership

Corp. v. Ga. Power Co., 191 S.E.2d 33, 36–37 (Ga. 1972). Furthermore,

according to the Georgia Constitution, a sheriff is not a city employee, but rather a

county officer. See Ga. Const. Art. IX, § 1, ¶ III.

      The district court did not err in dismissing Collier’s state law claim on the

grounds that O.C.G.A. § 36-33-4 was inapplicable. Section 36-33-4 applies only

to municipalities and thus municipal officers. Collier failed to allege any facts in

her amended complaint or cite any case law supporting her contention that

Conway, as a county sheriff, was an officer of a municipal corporation. In

distinguishing between counties and municipalities, Georgia law makes it clear that

county officers are different than municipal officers. The district court properly

dismissed the claim because Conway is not subject to the statute.

      AFFIRMED.




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