             Case: 14-12242   Date Filed: 10/22/2015     Page: 1 of 8


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-12242
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 4:13-cv-00117-MW-GRJ



DERRICK L. GIBSON, SR.,

                                                          Plaintiff-Appellant,

                                     versus

JOHN DOE,
Chief of Bureau of Central Records for Years 2005-2010
in his/her individual capacity,
SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                   Defendants-Appellees.

                         ________________________

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

                              (October 22, 2015)
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Before TJOFLAT, WILSON, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Derrick Gibson, Sr., proceeding pro se, appeals the district court’s dismissal

of his first amended complaint, filed pursuant to 42 U.S.C. § 1983, against “John

Doe, Chief of Bureau of Central Records,” in the Chief’s individual capacity

(“Records Custodian”). 1 Briefly stated, Gibson seeks damages and complains that

the Records Custodian’s failure to produce certain evidence during Gibson’s post-

conviction proceedings violated Gibson’s constitutional rights. 2 Gibson also

challenges the district court’s denial of leave to file a second amended complaint.

No reversible error has been shown; we affirm.

       This action arises out of Gibson’s challenge earlier to his 15-year Florida

court sentence for robbery. In state court, Gibson filed a motion to correct illegal

sentence, pursuant to Fla. R. Crim. P. 3.800(a). Relying on intervening state case

law, 3 Gibson argued that he should not have been sentenced under Florida’s

1
 Gibson has abandoned expressly his claim against Michael Crews, in his official capacity, as
barred by the Eleventh Amendment.
2
  Gibson’s complaint also included a state law claim for negligence. On appeal, Gibson raises no
challenge to the district court’s refusal to exercise supplemental jurisdiction over his state law
claim or to the district court’s dismissal of his state law claim. These arguments are abandoned.
See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008).
3
  In Brinson v. State, 851 So. 2d 815 (Fla. Ct. App. 2003), the state court concluded that the term
“release,” as used in Florida’s PRR statute, means “actual release from a state prison sentence,
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prisoner releasee reoffender (“PRR”) statute, Fla. Stat. § 775.082; he stressed his

1999 robbery offense was committed more than three years after he was last

“released from a state correctional facility,” within the meaning of the PRR statute.

Gibson contended the 1997 release date used by the trial court was from a

temporary detention pending a ruling on Gibson’s alleged parole violation and,

thus, was no valid release date for purposes of PRR sentencing.

       The state trial court denied summarily Gibson’s motion, in the light of

records provided by the Department of Correction’s Bureau of Central Records

(“Bureau”). The state appellate court reversed and remanded, concluding that the

Bureau’s records -- which showed only that Gibson’s last release date was in 1997

-- failed to address Gibson’s contention that his 1997 release was only from a

temporary detention. On remand, the state trial court again denied Gibson’s

motion based on additional documents provided by the Bureau. The state appellate

court reversed and remanded again. The trial court conducted an evidentiary

hearing and again denied Gibson’s motion. The state appellate court reversed and

remanded a third time, concluding that the state failed to refute Gibson’s claim that

his 1997 release was from a temporary detention and, thus, was no valid release



not release from a temporary confinement that happens to be in state prison,” such as a
temporary detention pending resolution of a parole violation charge. See also Wencel v. State,
915 So. 2d 1270 (Fla. Ct. App. 2005) (instructing the trial court -- when determining whether a
defendant was sentenced properly under the PRR statute -- to take judicial notice of the parole
commission’s order showing that defendant’s controlled release had not been revoked).
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date for purposes of PRR sentencing. Then, Gibson was resentenced (as a non-

PRR) to 21 months’ imprisonment, was credited for time served, and was released

immediately.

      Gibson filed this civil action against the Chief of Bureau of Central Records,

an action purporting to allege violations of the Eighth and Fourteenth

Amendments. The district court dismissed Gibson’s first amended complaint for

failure to state a claim and denied, as futile, Gibson’s motion for leave to file a

second amended complaint.

      We review de novo a district court’s ruling on a Fed. R. Civ. P. 12(b)(6)

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

construing them in the light most favorable to the plaintiff.” Am. Dental Ass’n v.

Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). “We may affirm the district

court’s judgment on any ground that appears in the record, whether or not that

ground was relied upon or even considered by the court below.” Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Although we

construe liberally pro se pleadings, pro se litigants must still conform to procedural

rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

      To survive dismissal for failure to state a claim, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotation omitted).


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“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. A complaint containing only “naked assertions devoid of

further factual enhancement” or “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. (quotations

and alterations omitted).

      To avoid dismissal of his section 1983 claim, Gibson must allege facts

demonstrating that he was deprived of a constitutional right by a person acting

under color of state law. See Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303

(11th Cir. 2001). Gibson must also allege facts demonstrating “an affirmative

causal connection between the official’s acts or omissions and the alleged

constitutional deprivation.” See Zatler v. Wainwright, 802 F.2d 397, 401 (11th

Cir. 1986).

      In his first amended complaint, Gibson alleged that the unnamed Records

Custodian acted with deliberate indifference by refusing to produce exculpatory

evidence to the state attorney and by giving “momentum and impetus to the

prosecution” to oppose Gibson’s motion to correct an illegal sentence. Gibson

provides no factual support for his conclusory allegations.

      Among other things, never has Gibson identified “exculpatory evidence”

that the Records Custodian allegedly concealed intentionally or otherwise failed to


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produce. Gibson has also alleged no facts demonstrating a causal connection

between the Records Custodian’s alleged acts and delay in Gibson’s obtaining

relief.

          The record demonstrates that the state appellate court concluded repeatedly

that the Bureau’s records were insufficient to establish Gibson’s PRR status. Yet

the state attorney continued to argue -- and the state trial court continued to rule --

that Gibson was unentitled to relief. On this record, it appears that the delay in

Gibson’s resentencing was proximately caused by the state attorney’s and the state

trial court’s continued misapplication of the PRR statute, not by the Records

Custodian’s alleged failure to produce some evidence. Because Gibson failed to

state a claim for relief that was plausible on its face, Gibson’s first amended

complaint was dismissed properly.

          The district court also committed no error in denying Gibson’s motion for

leave to file a second amended complaint. We review the district court’s denial of

a motion to amend a complaint for abuse of discretion, but review de novo whether

a proposed amendment would be futile. Coventry First, LLC v. McCarty, 605 F.3d

865, 869 (11th Cir. 2010).

          “Ordinarily, if the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, leave to amend should be freely given.”

Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (quotations


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and citations omitted). But leave to amend may be denied properly when the

proposed amendment would be futile. Id. at 1262-63. A proposed amendment is

“futile” “when the complaint as amended is still subject to dismissal.” Id. at 1263.

      In his proposed second amended complaint, Gibson first sought to replace

the unnamed “John Doe” with two named former Chiefs of Bureau of Central

Records, McKinnley Crockett and John McLaughlin. Gibson alleges no facts

supporting his conclusory allegations against Crockett or McLaughlin or

establishing a causal connection between the two proposed defendants’ alleged

acts and the delay in Gibson’s obtaining relief. As a result, Gibson’s claims

against Crockett and McLaughlin are subject to dismissal for the same reasons that

Gibson’s claim against “John Doe” was dismissed.

      Gibson also sought to add as defendants former Secretaries of the Florida

Department of Corrections Walter McNeil and James McDonough, in their official

capacities. Gibson’s claims against McNeil and McDonough are barred by the

Eleventh Amendment. See Gamble v. Fla. Dep’t of Health & Rehab. Serv., 779

F.2d 1509, 1512 (11th Cir. 1986) (the Eleventh Amendment bars “damages awards

against state officers sued in their official capacities in suits brought in federal

court pursuant to 42 U.S.C. § 1983.”).

      Because Gibson’s proposed second amended complaint was subject to




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dismissal, the district court committed no error in denying Gibson leave to amend.

See Hall, 367 F.3d at 1263.

      AFFIRMED.




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