            Case: 18-14165   Date Filed: 07/19/2019   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14165
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 0:18-cv-62009-UU



ERIC WATKINS,

                                                            Plaintiff-Appellant,

                                   versus

BRIAN MILLER,

                                                           Defendant-Appellee.

                       ________________________

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

                              (July 19, 2019)

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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      Eric Watkins, proceeding pro se, appeals from the district court’s order

denying his motion to proceed in forma pauperis (“IFP”) and dismissing his 42

U.S.C. § 1983 complaint without prejudice as frivolous.

      In August 2018, Watkins filed a § 1983 complaint against Brian Miller, an

officer employed by the Sheriff’s Office of Broward County, Florida, in his

individual capacity, for alleged violations of Watkins’s Fourth and Fourteenth

Amendment rights. Watkins alleged that Miller unreasonably seized him and

denied him of liberty without due process when Miller gave him an unauthorized

trespass warning on private property. Watkins’s complaint was accompanied by a

motion for leave to proceed IFP, pursuant to 28 U.S.C. § 1915.

      In his § 1983 complaint, Watkins alleged that, on August 30, 2014, he was

in a shopping center parking lot when Miller approached him and said that he had

received an anonymous call from someone who did not want Watkins on the

property. Miller told Watkins that he was trespassing and instructed him to leave

the property and not return. Watkins asked Miller if the owners of the property

had said he was trespassing, and Miller responded that he did not know who had

called.

      In response to Miller’s instruction, Watkins refused to leave the property,

arguing that Miller did not have the authority or authorization to order Watkins to

leave the property. Specifically, Watkins claimed that Miller lacked the authority


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to make such an order under Florida law because there were no “no trespassing”

signs, and Miller was not the property owner or a person authorized by the owner.

Another officer arrived and repeated to Watkins that he was trespassing. Watkins

asked the officers to verify that there was no record on file with the Sheriff’s

Office that he previously had been asked to leave or that the property owner had

authorized the Sheriff’s Office to order patrons to leave. Miller checked the

records as Watkins requested and indicated that the results came back negative.

      Miller then threatened to arrest Watkins for trespass if he did not leave.

Miller stated that the anonymous call was sufficient and that he did not need the

authority Watkins claimed he needed. Watkins left the property to avoid being

arrested.

      The district court denied Watkins’s motion to proceed IFP and sua sponte

dismissed his complaint without prejudice as frivolous, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). The district court determined that Watkins’s complaint lacked

legal merit, as the facts alleged could not support plausible Fourth or Fourteenth

Amendment violations. Specifically, the district court found that there was no

constitutional violation because Watkins did not allege that he was told that he was

not free to leave or that he was wrongfully forced to stay on the property while

Miller processed a formal trespass warning.




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       Watkins appealed the district court’s denial of his motion to proceed IFP and

the dismissal of his complaint.1

       On appeal, Watkins argues that the district court erred because it

misinterpreted his complaint’s allegations, rejected his Fourteenth Amendment

claim without discussion, and denied his Fourth Amendment claim. Watkins

asserts that he was unreasonably seized and denied due process when Miller issued

him an unauthorized trespass warning on private property open to the public,

threatened to arrest him, and forced him to leave the property. After review, we

affirm.

       We review a district court’s determination that an IFP complaint is frivolous

under 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. Miller v. Donald,

541 F.3d 1091, 1100 (11th Cir. 2008). Under this standard, a district court abuses

its discretion if its ruling is manifestly erroneous or constitutes a clear error of

judgment. Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d 1283, 1292 (11th

Cir. 2016).



       1
         In the district court, Watkins filed a motion for reconsideration of the district court’s
denial of his motion to proceed IFP and dismissal of his complaint. The district court denied his
motion for reconsideration. Although Watkins identifies the district court’s denial of his motion
for reconsideration in his notice of appeal before this Court, Watkins does not provide any
argument regarding the district court’s denial of his motion for reconsideration in his brief on
appeal. Therefore, we discuss only the district court’s order denying Watkins’s motion to
proceed IFP and dismissing his complaint. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (explaining that legal claims or arguments that have not been briefed
before this Court will not be addressed).
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      Subsection 1915(e)(2)(B)(i) of Title 28 provides that a court shall dismiss at

any time an IFP proceeding that the court determines to be frivolous. 28 U.S.C.

§ 1915(e)(2)(B)(i). A claim is frivolous if it lacks arguable merit either in law or

fact. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

      Section 1983 holds any person acting under color of state law liable for

depriving another of a constitutional right. 42 U.S.C. § 1983. The Fourteenth

Amendment provides that no state may deprive any person of life, liberty, or

property, without due process of law. U.S. Const. amend. XIV. The Due Process

Clause requires that an individual be given appropriate notice and an opportunity

to be heard before such a deprivation. See Catron v. City of St. Petersburg, 658

F.3d 1260, 1266 (11th Cir. 2011). For a procedural due process claim under

§ 1983, a plaintiff must prove that there has been (1) a deprivation of a

constitutionally protected liberty or property interest, (2) state action, and

(3) constitutionally inadequate process. Id. Regarding liberty interests,

“[p]laintiffs have a constitutionally protected liberty interest to be in parks or on

other city lands of their choosing that are open to the public generally.” Id.

      The Fourth Amendment guarantees the right of persons to be free from

unreasonable seizures. U.S. Const. amend. IV. A Fourth Amendment seizure

occurs when an officer, through physical force or show of authority, terminates or

restrains a person’s freedom of movement. Chandler v. Sec’y of Fla. Dep’t of


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Transp., 695 F.3d 1194, 1199 (11th Cir. 2012). However, given all of the

particular circumstances, if a reasonable person would have believed that he was

free to leave, there is no seizure under the Fourth Amendment. See id.

      Under Florida law, “[a] person who, without being authorized, licensed, or

invited, willfully enters upon or remains in any property other than a structure or

conveyance[] [a]s to which notice against entering or remaining is given, either by

actual communication to the offender or by posting, fencing, or cultivation”

commits a trespass on property other than a structure or conveyance. Fla. Stat.

§ 810.09(1)(a)(1). This subsection does not specify that notice must be given by

an owner of the property or an authorized person. See id.; R.C.W. v. State, 507

So. 2d 700, 702 (Fla. Dist. Ct. App. 1987) (“The state is not required to prove that

appellant defied an order to leave communicated by the owner or authorized

person in order to establish a violation of section 810.09.”).

      In contrast, a trespass in a structure or conveyance under Florida law occurs

when a person, “without being authorized, licensed, or invited, willfully enters or

remains in any structure or conveyance, or, having been authorized, licensed, or

invited, is warned by the owner or lessee of the premises, or by a person authorized

by the owner or lessee, to depart and refuses to do so.” Fla. Stat. § 810.08(1). In

short, Fla. Stat. § 810.08(1) prohibits trespassing inside structures or conveyances

when an owner or authorized person gives notice to the person to leave. See id.


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      The district court did not abuse its discretion in denying Watkins’s motion to

proceed IFP and dismissing, sua sponte, his complaint. Despite Watkins’s

argument that the district court did not explain its denial of his Fourteenth

Amendment claim, the district court found, and we also conclude, that Watkins’s

Fourteenth Amendment claim lacked arguable merit either in law or fact and was

therefore frivolous. See Bilal, 251 F.3d at 1349.

      Watkins did not identify in his complaint any actual deprivation of a

constitutionally protected liberty interest or any constitutionally inadequate process

that occurred. To the extent Watkins asserts a liberty interest in remaining in the

shopping center’s parking lot, Watkins did not have a constitutionally protected

liberty interest in remaining on that private property. In contrast to public

property, Watkins did not have a liberty interest in remaining in a private parking

lot, and the officers explained to him that he was trespassing and gave him an

opportunity to leave. See Fla. Stat. § 810.09(1)(a)(1); Catron, 658 F.3d at 1266.

      Further, Watkins’s argument that Miller lacked the authority or authorization

to issue him a trespass warning under Florida trespass law and, therefore, provided

him with inadequate process in violation of the Fourteenth Amendment is

unfounded. Watkins’s encounter with Miller occurred in a parking lot on private

property, which is property other than a structure or conveyance covered under Fla.

Stat. § 810.09(1)(a)(1). See R.C.W., 507 So. 2d at 702 (explaining that a parking


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lot of a mall is property other than a structure or conveyance). Unlike Fla. Stat.

§ 810.08(1), a trespass warning by an owner or authorized person is not required

under § 810.09(1)(a)(1). See Fla. Stat. §§ 810.08(1), 810.09(1)(a)(1). As Watkins

was in a parking lot, and not inside a structure or conveyance, Miller provided the

requisite notice that Watkins was prohibited from remaining on that property and

instructed that he leave. See id. § 810.09(1)(a)(1).

      Turning now to Watkins’s Fourth Amendment claim, that claim also lacked

arguable merit either in law or fact and was therefore frivolous. See Bilal, 251

F.3d at 1349. Under the particular circumstances here, a reasonable person would

have believed that he was free to leave and, therefore, no seizure occurred in

violation of the Fourth Amendment. See Chandler, 695 F.3d at 1199.

      Despite Watkins’s assertion that his interaction with Miller was not

voluntary and that he was forced to leave against his will, Watkins’s interaction

with Miller was a consensual encounter. See Rodriguez v. State, 29 So. 3d 310,

311 (Fla. Dist. Ct. App. 2009) (concluding that “a stop merely to issue a trespass

warning is not a Terry[ 2] stop, but rather a consensual encounter”). At no point did

Miller ever physically restrain Watkins or indicate that he was not free to leave.

Indeed, after Watkins received the trespass warning from Miller, it was Watkins

who remained in the parking lot to argue about Miller’s authority to enforce


      2
          Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
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Florida’s trespass laws. At all times Watkins was free to leave and Miller strongly

encouraged Watkins to do so.

       Thus, the district court did not abuse its discretion in denying Watkins’s

motion to proceed IFP and dismissing his complaint without prejudice as frivolous.

      AFFIRMED.




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