             Case: 15-12231   Date Filed: 12/09/2016   Page: 1 of 9


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-12231
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 0:15-cv-60050-JIC


CALVIN C. CALDWELL, JR.,

                                                             Plaintiff-Appellant,

                                    versus


FORT LAUDERDALE AIRPORT TASK FORCE,
Fort Lauderdale-Hollywood International Airport,
DRUG ENFORCEMENT AGENCY,
PHIL MACDONALD,
Officer, Broward County Sheriff,
DUSTIN THOMPSON,
Officer, Broward County Sheriff,
OKEEFE,
Officer, Broward County Sheriff, et al.,

                                                          Defendants-Appellees.

                        ________________________

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

                              (December 9, 2016)
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Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Calvin Caldwell appeals the district court’s sua sponte dismissal of his 42

U.S.C. § 1983 civil-rights lawsuit against the Fort Lauderdale Airport Task Force,

the Drug Enforcement Agency, the Broward County Sheriff’s Department and four

of its officers, and the Miami Police department and two of its officers. Caldwell

alleged that these defendants violated his rights under the Fourth, Fifth, and

Fourteenth Amendments by unlawfully detaining him at the Fort Lauderdale and

Miami airports and seizing money that he was traveling with.

      According to the allegations in Caldwell’s complaint, which we accept as

true for purposes of this appeal, in February 2012, Caldwell flew into the Fort

Lauderdale Airport from Columbus, Ohio.         As he exited the plane, he was

approached by Officer Phil MacDonald, who, after asking Caldwell what he was

doing in town, took Caldwell’s carry-on bag and opened it in the terminal.

MacDonald then asked Caldwell to accompany him to the terminal interdiction

office. Caldwell requested to have his attorney present, but no attorney was called.

When Caldwell and MacDonald arrived at the interdiction office, Caldwell asserts,

he was shoved into the room and his cell phones were thrown against the wall.

Officers O’Keefe and Poole threatened to taser him and called him a racial slur.




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      In the interdiction office, Officers O’Keefe and Poole emptied the contents

of Caldwell’s luggage and found cash wrapped in clear plastic bags. Caldwell said

he had $25,000 in business capital. Despite Caldwell’s request to have the money

counted in his presence, Officer MacDonald left the room to count the cash with a

machine. He returned an hour-and-a-half later and handed Caldwell a receipt for

$23,340, though Caldwell claimed he had $25,000. Caldwell was told to gather his

possessions and leave. The officers failed to return Caldwell’s Florida driver’s

license, debit card, and cell phones. Caldwell reported the missing items, and his

driver’s license was returned a few hours later. Caldwell took the receipt for the

$23,340 to his attorney.

      In December 2012, Caldwell flew into the Miami International Airport from

Columbus, Ohio. As he walked through the terminal, he noticed that he was being

tailed by Officer O’Keefe. Eventually, O’Keefe accosted and then detained him

until Officers MacDonald and Poole arrived. The officers took Caldwell to the

terminal interdiction office, where he met Detective Quintas. Caldwell explained

that he was in town to give a deposition at his attorney’s office. MacDonald took

and opened his carry-on bag, which again contained cash. At Quintas’s direction,

Caldwell counted the currency, placed it in a clear plastic bag, and initialed the

amount. After a wait of nearly two hours, the officers conducted a dog sniff. In

Caldwell’s opinion, the dog did not alert to the currency. The officers gave


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Caldwell a receipt for $5,790 and let him go. Thirty days later, the Department of

Justice contacted Caldwell and told him to file a claim for the return of the seized

currency. He did so.

      For relief, Caldwell requested the return of all seized currency plus interest,

attorney’s and filing fees, punitive damages, and reimbursement of the cost of his

flights and other additional lost funds.

      After granting Caldwell, who was in custody at the time, leave to proceed in

forma pauperis, a magistrate judge sua sponte screened his complaint, pursuant to

28 U.S.C. §§ 1915A & 1915(e)(2). In a report and recommendation (“R&R”), the

magistrate judge recommended that the complaint be dismissed “without

prejudice” for failure to state a claim under 28 U.S.C. § 1915(e)(2)(b)(ii).

      The magistrate judge implicitly construed Caldwell’s complaint as asserting

one claim: a procedural due-process claim under the Fourteenth Amendment

based on the defendants’ retention of the seized currency. Finding that Caldwell

had “an adequate post-deprivation state remedy for the alleged wrongful taking of

his property in the form of a tort action for conversion,” the magistrate judge

concluded that no procedural due-process violation had occurred. See Case v.

Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009) (stating that no procedural due-

process violation has occurred if an adequate post-deprivation remedy is available,

such as a civil cause of action for wrongful conversion of personal property under


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state law). The magistrate judge also noted that Caldwell was seeking the return of

his funds in a pending civil forfeiture action filed by the government against the

funds.

         In March 2015, Caldwell filed a response to the magistrate judge’s R&R.

He explained that he had “reviewed the rule of law and case law given in support”

by the magistrate judge and found “no basis to object or argue against said

conclusion.” He agreed that “dismissal without prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(b)(ii) is fair and just.” Caldwell stated that he would prosecute his

claims in the pending forfeiture action.

         Caldwell, through counsel, filed claims for the seized currency in the civil

forfeiture action, which the government initiated in August 2012.1 See CM/ECF

for U.S. Dist. Ct. for S.D. Fla., case no. 0:12-cv-61508-LSS. He argued that the

currency had been unlawfully seized in violation of the Fourth Amendment.

Eventually, the case was set for a bench trial on March 31, 2015. About two weeks

before the trial date, however, the government filed a motion for voluntary

dismissal without prejudice. See Fed. R. Civ. P. 41(a)(2). The court granted the

motion and dismissed the action on March 17, 2015. 2



         1
        Caldwell’s counsel withdrew in July 2013, and Caldwell represented himself thereafter.
         2
        Despite the dismissal of the forfeiture action and the “release” of the seized currency,
Caldwell did not receive the money. According to the government, the Debt Collection
Improvement Act of 1996, 31 U.S.C. § 3716, required that the seized currency first be applied to
pay down delinquent non-tax debts Caldwell owed to the federal government and various state
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      In April 2015, after the dismissal of the forfeiture action, Caldwell filed a

motion for default judgment against the defendants on his claims, despite his

earlier representation that dismissal without prejudice was “fair and just.” This

motion was docketed as a motion for clerk’s entry of default and denied by a

deputy clerk.

      On April 15, 2015, the district court adopted the magistrate judge’s R&R

and dismissed the complaint “without prejudice.” The court determined that the

forfeiture action, which the government had voluntarily dismissed, provided

Caldwell with an adequate forum to address his purported injury, so he did not

state a § 1983 claim. The court granted Caldwell leave to proceed in forma

pauperis on appeal.

      On appeal, Caldwell argues that the district court erred by dismissing his

complaint for failure to state a claim. Liberally construing his appellate brief, we

find that he contends that the defendants violated his Fourth Amendment rights by

unlawfully detaining him, searching his luggage, and seizing his property.

      A district court’s sua sponte dismissal for failure to state a claim under 28

U.S.C. § 1915(e)(2)(B)(ii) is reviewed de novo. Troville v. Venz, 303 F.3d 1256,

1259 (11th Cir. 2002). Section 1915(e) provides that an in forma pauperis action




courts. Caldwell separately appealed from the civil forfeiture proceeding.   That appeal is
traveling under No. 15-15311.
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or appeal shall be dismissed at any time if it fails to state a claim for which relief

may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). We liberally construe the filings of

pro se parties. Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir.

2014).

      Caldwell’s complaint, liberally construed, presents two distinct claims.

First, Caldwell alleged that the defendants violated due process by retaining his

seized property. We have stated that “[a] complaint of continued retention of

legally seized property raises an issue of procedural due process under the

Fourteenth Amendment.” Case, 555 F.3d at 1330. This type of claim fails where

an adequate post-deprivation remedy is available, such as a civil cause of action for

conversion. Id. at 1331. Thus, the district court correctly concluded that no

procedural due-process violation had occurred because Caldwell had adequate

post-deprivation remedies for the alleged wrongful taking of his property. Id.

      Second, Caldwell alleged that the searches and seizures themselves were

unlawful. Such a claim arises under the Fourth Amendment and is not defeated by

the existence of an adequate post-deprivation remedy. Byrd v. Stewart, 811 F.2d

554, 555 (11th Cir. 1987) (distinguishing “unlawful retention” claims from

“unlawful seizure” claims and remanding where the district court failed to address

the Fourth Amendment claim); see also Gilmere v. City of Atlanta, 774 F.2d 1495,




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1501–02 (11th Cir. 1985) (en banc), abrogated on other grounds by Graham v.

Connor, 490 U.S. 386 (1989).

      Here, the district court did not address whether Caldwell stated a claim

under the Fourth Amendment. And viewed in his favor, his allegations suggest

that state law-enforcement officers acting under color of state law detained him

without probable cause or reasonable suspicion and then unlawfully searched his

luggage and seized his personal property, in violation of the Fourth Amendment.

See Byrd, 811 F.2d at 555. Because Caldwell’s allegations appear to state a viable

Fourth Amendment claim under § 1983, we vacate and remand for further

proceedings on this claim.

      In remanding Caldwell’s Fourth Amendment claim, we recognize that

Caldwell told the district court in his response to the magistrate judge’s R&R, that

dismissal was “fair and just.” Normally, this representation might be sufficient to

apply the doctrine of invited error, which prohibits a party from challenging a

ruling that the party expressly invited. Ford ex rel. Estate of Ford v. Garcia, 289

F.3d 1283, 1293–94 (11th Cir. 2002).

      Nevertheless, liberally construing Caldwell’s filings, we cannot conclude

that he invited the court to dismiss his complaint without addressing his Fourth

Amendment claim. Given the title of the magistrate judge’s R&R, “Preliminary

Report of Magistrate Judge,” and the fact that the R&R addressed Caldwell’s


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unlawful-retention claim only, it is ambiguous whether Caldwell understood the

R&R to recommend a final adjudication of his complaint or just dismissal of the

due-process claim. Moreover, Caldwell’s agreement with the R&R appears to

have been based on his belief that he could obtain relief in the forfeiture action,

which was dismissed by the government shortly after Caldwell filed his response

to the R&R. After the voluntary dismissal, Caldwell filed a motion for default

judgment on his complaint, indicating that he wished to proceed with his

complaint. Given the ambiguous and contingent nature of Caldwell’s position on

whether dismissal was appropriate, we conclude that the doctrine of invited error

does not apply. 3

       In sum, because Caldwell’s complaint asserted a Fourth Amendment claim

under § 1983 that was not addressed by the district court, we vacate and remand

for further proceedings on this claim.

       VACATED AND REMANDED.


       3
          We also conclude that Caldwell has not otherwise waived his challenge to the district
court’s order. Eleventh Circuit Rule 3-1, which took effect on December 1, 2014, provides that
“[a] party failing to object to a magistrate judge’s findings or recommendations . . . waives the
right to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for objecting and the consequences on
appeal for failing to object.” 11th Cir. R. 3-1 (emphasis added). Before Rule 3-1 went into
effect, we reviewed de novo a magistrate judge’s legal conclusions in a report and
recommendation even if the party failed to object to them. See Dupree v. Warden, 715 F.3d
1295, 1300 (11th Cir. 2013). Here, the magistrate judge’s R&R did not give Caldwell clear
notice of the consequences on appeal for failure to object to the legal conclusions in the R&R.
Accordingly, we review de novo the question of whether Caldwell failed to claim under § 1983.
See Troville, 303 F.3d at 1259.
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