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                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 17-11291
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 3:15-cv-00234-MCR-EMT



PRESTON JERMAIN LEWIS,

                                                        Plaintiff-Appellant,

                                    versus

THOMAS JOSEPH LEONARD,
Director, Adult and Secondary Education,
Pensacola State College,

                                                        Defendant-Appellee.

                         ________________________

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

                              (November 27, 2017)
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Before TJOFLAT, HULL and NEWSOM, Circuit Judges.

PER CURIAM:

      In this 42 U.S.C. § 1983 action, plaintiff Preston Jermain Lewis, a former

student at Pensacola State College (“PSC”), appeals pro se the district court’s order

granting summary judgment in favor of defendant Thomas Joseph Leonard, the

former Director of the Office of Student Conduct at PSC. Lewis’s § 1983 action

arose out of an investigation of student misconduct at PSC. The district court

granted defendant Leonard’s motion for summary judgment, concluding that

Lewis’s claims were barred by the doctrine of res judicata. After review, we

affirm.

                           I. BACKGROUND FACTS

A.    Lewis’s First § 1983 Action in 2013

      In June 2013, Lewis filed pro se a § 1983 action against defendant Leonard

alleging race discrimination during Leonard’s investigation into student

misconduct at PSC in 2013. Specifically, Lewis, who is African American, alleged

that he was called out of a class and taken to a conference room, where defendant

Leonard asked him if he had used profanity toward one of his professors. After

Lewis denied doing so, defendant Leonard told Lewis to leave PSC’s campus or

face arrest for trespassing. Later, Lewis was told by PSC officials that the incident




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was a mistake and that he could return to campus. Lewis alleged that defendant

Leonard’s actions were based on race.

      On July 28, 2014, the district court granted defendant Leonard’s motion to

dismiss based on qualified immunity and dismissed Lewis’s § 1983 complaint for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Lewis did

not appeal the dismissal.

B.    Lewis’s Second § 1983 Action in 2015

      About nine months later, on May 22, 2015, Lewis filed this second,

counseled § 1983 complaint against defendant Leonard alleging claims of race

discrimination and deprivation of due process. Like his first complaint, Lewis’s

second complaint described his 2013 encounter with defendant Leonard and

alleged that defendant Leonard asked Lewis if he had sexually harassed the

professor and then dismissed Lewis from PSC without conducting a proper

investigation.

      During discovery, plaintiff Lewis failed to appear at his noticed deposition.

Shortly thereafter, Lewis’s attorney withdrew, citing Lewis’s failure to appear, and

Lewis elected to proceed pro se.

      Defendant Leonard filed a motion for sanctions pursuant to Federal Rule of

Civil Procedure 37(d)(1)(A), noting that Lewis had advised his attorney (in the

early morning hours before the deposition was scheduled) that he would not


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appear. In his pro se response, Lewis did not dispute that his deposition was

scheduled and that he failed to appear. Instead, Lewis explained that he decided he

could not attend the deposition (1) after his former attorney advised him that

defendant Leonard had not yet responded to interrogatories, and (2) because Lewis

and his former attorney did not reach an understanding about how to handle the

situation.

       A magistrate judge (“the court”) granted defendant Leonard’s motion for

sanctions, concluding that plaintiff Lewis had not “shown that his failure to appear

was substantially justified or that other circumstances made the award of expenses

unjust.”1 The court explained that even assuming that Lewis “had properly

propounded interrogatories to Defendant and Defendant had indeed failed to

answer them, this alone does not entitle Plaintiff to purposely avoid his

deposition.” The court ordered defendant Leonard to file a notice setting forth the

amount of fees sought. In the order, the court advised Lewis that if he elected not

to file a response to defendant Leonard’s notice, Lewis would “forfeit[ ] the right

to contest the award sought by Defendant and any determination by this court that

he is responsible for payment of the award.” Lewis did not file a response, and the




       1
         After the district court referred the case to the magistrate judge to handle non-dispositive
matters, the magistrate judge entered the order granting defendant Leonard’s motion for
sanctions and the subsequent order directing plaintiff Lewis to pay $4,730 in attorney’s fees.
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court ordered Lewis to pay $4,730 in attorney’s fees related to Lewis’s failure to

attend the scheduled deposition.

C.     Motion for Summary Judgment in Second Action

       Following discovery, defendant Leonard filed a motion for summary

judgment, asserting that plaintiff Lewis’s claims were barred by res judicata

because they were litigated in the prior action. Lewis’s response to the summary

judgment motion recounted the confrontation with defendant Leonard and argued

the merits of his claims, but did not address the issue of res judicata.

       The magistrate judge issued a report (“R&R”) recommending that the

district court grant defendant Leonard’s motion for summary judgment because

Lewis’s claims were barred by res judicata. Lewis filed an objection to the R&R

that argued the merits of his claims, but did not object to the magistrate judge’s

conclusion that his claims were barred by res judicata. The district court adopted

the R&R and granted Leonard’s summary judgment motion.

                                     II. DISCUSSION

A.     Summary Judgment

       On appeal, plaintiff Lewis’s attack on the district court’s summary judgment

ruling addresses only the merits of his claims. 2 Lewis does not address, much less


       2
        For example, plaintiff Lewis argues that the district court failed to consider his summary
judgment evidence—including a statement by a PSC officer about lifting a trespass warning
given to Lewis and also the admissions by PSC officials that the school had made a mistake—
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challenge, the district court’s basis for granting summary judgment—the

conclusion that res judicata barred Lewis’s claims. Indeed, there is no mention of

the district court’s res judicata ruling anywhere in Lewis’s appeal brief.

       Although we construe pro se briefs liberally, we will not act as de facto

counsel for litigants, and a pro se litigant who offers no substantive argument on an

issue in his brief abandons the issue on appeal. Timson v. Sampson, 518 F.3d 870,

874 (11th Cir. 2008). Because Lewis does not argue that the district court

misapplied the doctrine of res judicata to his case, he has abandoned this issue.

       Even if plaintiff Lewis had properly preserved the issue, the district court

properly concluded that Lewis’s second § 1983 action against defendant Leonard

was barred by res judicata. Under that doctrine (also known as claim preclusion), a

claim is barred by a prior suit if: “(1) there is a final judgment on the merits; (2) the

decision was rendered by a court of competent jurisdiction; (3) the parties . . . are

identical in both suits; and (4) the same cause of action is involved in both cases.”

Griswold v. Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010)

(quotation marks omitted). All four conditions are met here.

       First, there was a final judgment on the merits in Lewis’s prior § 1983

action, because the court dismissed Lewis’s complaint for failure to state a claim




that Lewis contends supported an inference of racial discrimination. Lewis also states that he
was deprived of his liberty and property interests without due process of law.
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for relief pursuant to Rule 12(b)(6). Federated Dep't Stores, Inc. v. Moitie, 452

U.S. 394, 399 n.3, 101 S. Ct. 2424, 2428 n.3 (1981) (“[A] dismissal for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6) is a judgment on the

merits.”) (quotation marks omitted); NAACP v. Hunt, 891 F.2d 1555, 1560 (11th

Cir. 1998) (same). Second, the dismissal was rendered by a court of competent

jurisdiction, because it involved a federal claim and properly invoked the

jurisdiction of the Northern District of Florida. Third, the parties are identical in

each action. Fourth, the cases involve the same cause of action, because the claims

raised in both cases are based upon the 2013 incident between Leonard and Lewis

that occurred at PSC. See Griswold, 598 F.3d at 1293 (“If a case arises out of the

same nucleus of operative facts, or is based upon the same factual predicate, as a

former action, the two cases are really the same ‘claim’ or ‘cause of action’ for

purposes of res judicata.” (alterations and quotation marks omitted)).

      Thus, we have no basis to overturn the district court’s decision granting

summary judgment.

      B.     Sanctions Order

      On appeal, plaintiff Lewis also argues that the court abused its discretion by

ordering him to pay $4,730 in attorney’s fees to defendant Leonard related to

Lewis’s failure to attend the scheduled deposition.




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      Under Rule 37(d), the district court may grant a motion for sanctions if a

party fails to attend his own deposition after being properly served with notice of

the deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). Either in lieu of, or in addition to,

other sanctions, the district court “must require” either the party that failed to

appear, or his attorney, or both “to pay the reasonable expenses, including

attorney’s fees, caused by the failure, unless the failure was substantially justified

or other circumstances make an award of expenses unjust.” Fed. R. Civ. P.

37(d)(3). We review for abuse of discretion a district court’s determination that

there was no substantial justification for the conduct that resulted in the ordered

sanctions. Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1162-63 (11th Cir.

1993).

      Here, plaintiff Lewis has not shown that the court abused its discretion in

granting the motion for sanctions. Lewis has never disputed that he failed to attend

his properly set deposition. The only justification Lewis ever offered for his

failure to attend was that he believed he should not be deposed until after

defendant Leonard answered interrogatories. Lewis says that, on the eve of his

deposition, he learned from his former attorney that defendant Leonard had not

answered the interrogatories and that he and his attorney did not have an

understanding about how to respond. As the court noted, however, the proper

response to such a concern was to file a motion to compel interrogatory responses,


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not for Lewis to refuse to attend his duly noticed deposition only hours before it

was set to begin.

      On appeal, plaintiff Lewis points out that defendant Leonard’s attorney also

did not appear at the noticed address in Pensacola for the deposition. Although

true, it ignores the reason. On the morning of the deposition, as the attorneys for

both parties were driving from Tallahassee to Pensacola to take the deposition,

Lewis’s attorney learned that Lewis refused to attend. Lewis’s attorney then

advised Leonard’s attorney of this fact, and Leonard’s attorney turned around and

drove back to Tallahassee. Under the circumstances, we find no abuse of

discretion in the district court’s determination that Lewis’s failure to attend the

deposition was not substantially justified.

      To the extent Lewis argues that the amount of the award places a heavy

financial burden on him, it is clear that Lewis failed to file a response to the notice

of attorney’s fees in the district court and did not contest the amount of the award

in the district court. Thus, Lewis has waived this issue on appeal, and we do not

address it. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th

Cir. 2004).

      AFFIRMED.




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