                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-12097                 DEC 09, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                           D.C. Docket No. 4:10-cv-00057-RH-WCS

BOBBY RAY GRADY,

lllllllllllllllllllll                                          Plaintiff-Appellant,

                                            versus

THERESA E. BAKER,

lllllllllllllllllllll                                          Defendant-Appellee.

                                ________________________

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

                                     (December 9, 2010)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
       Bobby Ray Grady, a person civilly committed in the state of Florida,1

appeals the dismissal of his pro se civil rights complaint against Dr. Theresa

Baker, filed pursuant to 42 U.S.C. § 1983. Because Grady was properly advised

that his amended complaint would replace all previous complaints, his argument

that the district court erred in failing to consider his original complaint is without

merit. Grady also abandoned his arguments related to his actual confinement and

any Eighth Amendment violations because he failed to allege any facts suggesting

that he was denied procedural due process. Additionally, Grady alleged that Baker

violated state law and that he was entitled to damages pursuant to state law, thus

he failed to allege any violation of his federal substantive due process rights.

Because Grady failed to allege any facts supporting a § 1983 claim, the district

court did not err in dismissing his complaint for failure to state a claim. We

therefore affirm the order of the district court.

                                        Background

       Grady filed a pro se § 1983 action against Baker, a senior psychologist

employed at Florida State Hospital (“FSH”) where Grady is confined. Grady



       1
         Grady was committed to the Florida Department of Children and Families in connection
with state criminal case number 07CFO19581A. It is uncertain whether Grady was found not
guilty by reason of insanity, or whether charges remain pending and he is committed because he
is not competent to stand trial.

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alleged that Baker committed perjury, falsified court records, and misused her

authority to prevent his release from FSH. Grady claimed that Baker’s actions

violated his Eighth and Thirteenth Amendment rights, “U.S. Law,” “U.S.C. Art.

6,” and Fla. Stat. §§ 916.15 and 916.16. Grady requested $500,000 in damages,

and that FSH terminate Baker.

      The magistrate judge ordered Grady to file an amended complaint. The

judge noted how the original complaint failed to allege a constitutional violation

or present any facts showing how Baker harmed Grady. The judge instructed

Grady what elements were necessary for him to prove a claim against Baker

pursuant to the Eighth Amendment. The judge also told Grady that filing an

amended complaint would completely replace all previous complaints.

      Grady filed an amended complaint. According to Grady, Baker submitted

clinical findings in state court that were false, exaggerated, perjurious, and

designed to prevent Grady’s “release from the hospital.” Grady alleged that

Baker’s false medical reports constituted perjury and violated the Fifth and Eighth

Amendments to the U.S. Constitution, as well as Florida law governing mentally

ill defendants. Grady argued that an evaluation done by Dr. Michael Maher

proved that Baker’s report was false. He further argued that he was deprived of

due process because Maher took Baker’s false report into account when he

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recommended that Baker not be released from FSH. Baker again requested relief

in the amount of $500,000, and that Baker’s position be terminated. He also

requested the ability to “construct a method to improve hospital practices.”

      The district court dismissed Grady’s complaint for failure to state a claim,

noting that Baker was immune from civil liability for preparing the report because

the report was akin to testimony. The court concluded that Grady failed to present

a valid claim that Baker violated his Eighth Amendment rights by rendering her

medical opinion, noting that Grady failed to allege that Baker was deliberately

indifferent to Grady’s medical needs or a risk to his safety, or that she failed to

provide him with care. The court also noted that Grady could not use a § 1983

claim to challenge his confinement. The court did not, however, discuss Grady’s

claim that his due process rights were violated.

      On appeal, Grady argues that the district court erred in not considering his

original complaint. He states his amended complaint was misconstrued because

he never intended to challenge Baker’s medical opinion and report, but only her

“unlawful conduct, practice, and performing illegally and unconstitutionally as

defined by Florida State laws.” Grady asserts that his constitutional rights were

violated because FSH did not comply with Florida law regarding mental health

treatment, and accordingly argues that he is entitled to damages for Baker’s

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actions pursuant to Fla. Stat. § 394.459(10). Grady also notes that he did not seek

to challenge his confinement in filing the complaint.

                                      Discussion

       We review a district court’s decision to dismiss a prisoner’s complaint for

failure to state a claim de novo. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.

2006) (citation omitted). In evaluating the sufficiency of a plaintiff’s pleadings we

“make reasonable inferences” in the plaintiff’s favor, but the court is not required

to accept the plaintiff’s legal conclusions. Sinaltrainal v. Coca-Cola Co., 578

F.3d 1252, 1260 (11th Cir. 2009) (citations omitted). “A complaint is subject to

dismissal for failure to state a claim if the allegations, taken as true, show the

plaintiff is not entitled to relief.” Jones v. Bock, 549 U.S.199, 215, 127 S. Ct. 910,

920 (2007).

      “Section 1983 creates no substantive rights; it merely provides a remedy for

deprivations of federal statutory and constitutional rights.” Almand v. DeKalb

Cnty., Ga., 103 F.3d 1510, 1512 (11th Cir. 1997) (citation omitted). Section 1983

is not meant to replace state tort law, it is only meant to provide a remedy for

violations of federally protected rights. Id. at 1513 (citing Baker v. McCollan, 443

U.S. 137, 145–46, 99 S. Ct. 2689, 2695 (1979)). A successful 42 U.S.C. § 1983




                                           5
action requires that the plaintiff “show [that he or] she was deprived of a federal

right by a person acting under color of state law.” Id. (citation omitted).

      An official violates an involuntarily civilly committed person’s Eighth

Amendment rights when the official is deliberately indifferent to their serious

medical needs. Dolihite v. Maughon By and Through Videon, 74 F.3d 1027, 1041

(11th Cir. 1996). Thus, to prevail on his Eighth Amendment claim for damages

under § 1983, Grady must prove “(1) a condition of confinement that inflicted

unnecessary pain or suffering, (2) the defendant’s ‘deliberate indifference’ to that

condition, and (3) causation.” LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir.

1993) (internal citations omitted).

      A violation of either procedural or substantive due process may also form

the basis for a civil rights suit under § 1983. McKinney v. Pate, 20 F.3d 1550,

1555 (11th Cir. 1994) (en banc). The Due Process Clause of the Fourteenth

Amendment provides “nor shall any State deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1. Procedural

due process “entitles an individual to notice and some form of hearing before state

action may finally deprive him or her” of a liberty interest. See Cryder v.

Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). An actionable constitutional




                                          6
violation arises “only when the state refuses to provide a process sufficient to

remedy the procedural deprivation . . . .” McKinney, 20 F.3d at 1557.

      Substantive due process, on the other hand, protects against “government

interference with certain fundamental rights and liberty interests.” Williams v.

Att’y Gen. of Ala., 378 F.3d 1232, 1235 (11th Cir. 2004) (citation omitted). “[T]he

involuntarily civilly committed have liberty interests under the due process clause

of the Fourteenth Amendment to safety, freedom from bodily restraint, and

minimally adequate or reasonable training to further the ends of safety and

freedom from restraint.” Dolihite, 74 F.3d at 1041 (citing Youngberg v. Romeo,

457 U.S. 307, 324, 102 S. Ct. 2452, 2462 (1982)). Because substantive due

process rights are created only by the U.S. Constitution, rights created by state law

are not entitled to this protection. McKinney, 20 F.3d at 1556.

      In this case, Grady filed an amended complaint, which he was advised

would supercede his original complaint. See Pintando v. Miami-Dade Hous.

Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam). Thus Grady’s

argument that the district court erred by failing to consider his original complaint

is without merit.

      Grady’s amended complaint can liberally be construed to raise the following

claims: (1) that Baker committed perjury; (2) that Baker’s report wrongfully

                                          7
resulted in his continued confinement; (3) that Baker was deliberately indifferent

to his medical needs, in violation of the Eighth Amendment, as her report

increased the severity of his mental illnesses; and (4) that Baker’s report resulted

in violations of Grady’s due process rights. The district court analyzed Grady’s

first three claims, finding that: (1) to the extent that Baker did commit perjury in

preparing her report, Grady could not undermine that testimony by filing a civil

rights action; (2) that Grady could not challenge his actual confinement in a

§ 1983 action; and (3) that Grady failed to allege that Baker was deliberately

indifferent to his medical needs or safety or that she failed to provide him with

care. The district court did not analyze Grady’s potential due process claims.

      On appeal, Grady abandons his second and third claims. While we read

briefs filed by pro se litigants liberally, issues that a pro se litigant does not brief

on appeal are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th

Cir. 2008) (per curiam) (citations omitted). First, Grady concedes that he did not

attempt to challenge his actual confinement in his amended complaint.

Additionally, although mentioned in his amended complaint, Grady failed to raise

any argument in his appellate brief related to Baker’s deliberate indifference or

any other potential violation of the Eighth Amendment. Accordingly, to the extent

that Grady raised these issues below, he has abandoned them on appeal.

                                            8
      Grady argues repeatedly in his amended complaint and his brief to this

Court that Baker acted unprofessionally and committed perjury, in violation of his

constitutional rights and in violation of Florida law. The remedy for false

testimony in a judicial proceeding “is criminal prosecution for perjury and not

expanded civil liability and damages.” See Rehberg v. Paulk, 611 F.3d 828, 840

(11th Cir. 2010) (quoting Jones v. Cannon, 174 F.3d 1271, 1287 n.10 (11th Cir.

1999)). Thus, the district court did not err in concluding that Grady failed to state

a § 1983 claim based on Baker’s perjury.

      Reading Grady’s complaint liberally, the only remaining claims raised in the

amended complaint are due process claims. Grady does not allege that he was

denied notice, a hearing, or post-deprivation review, but only that Baker’s false

report tainted the review process. Taking Grady’s allegations as true, he has failed

to state any facts suggesting that he was deprived of his right to procedural due

process. See Cryder, 24 F.3d at 177; McKinney, 20 F.3d at 1557.

      Similarly, Grady has not alleged any facts to support a claim that his

substantive due process rights were violated. In his amended complaint, Grady

argues that he was wrongfully kept in civil confinement as a result of Baker’s

fabricated report, which liberally construed could raise a “liberty interest” due

process claim. See Dolihite, 74 F.3d at 1041. However, Grady’s amended

                                           9
complaint and appellate brief repeatedly allege that Baker’s intentional lies in her

clinical summary violated Florida law, and that he is entitled to recovery based on

Florida law. Because Grady seeks to challenge his rights under Florida’s Mental

Health Act, and because Florida law provides Grady with a remedy for these

alleged violations of state law, the rights that he alleges were violated are not

federal rights. Accordingly, he did not allege sufficient facts to show a violation

of his substantive due process rights. See McKinney, 20 F.3d at 1556; Almand,

103 F.3d at 1512.

      Although the district court failed to analyze Grady’s potential due process

claims, we may affirm the district court on any ground supported by the record.

Koziara v. City of Casselberry, 392 F.3d 1302, 1306 n.2 (11th Cir. 2004). The

district court dismissed Grady’s amended complaint for failure to state a claim.

For the aforementioned reasons, we find that Grady did not allege any set of facts

that would support a § 1983 claim. Because the district court did not err in

dismissing Grady’s complaint, we affirm.

      AFFIRMED.




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