            Case: 17-12630   Date Filed: 11/13/2018   Page: 1 of 11


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-12630
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 4:17-cv-00058-CDL



EMMETT WILLIAMS,

                                               Plaintiff - Appellant,

versus

BROOKS TRUCKING COMPANY, INC. OF MEMPHIS,
CANAL INSURANCE COMPANY,
RICHARD A. MARCHETTI, ESQ,
Individually and as an Agent, Agency, and Employee of Brooks
Trucking Company of Memphis and Canal Insurance Company,
JUDGE WILLIAM C. RUMER,
Muscogee County Georgia Superior Court Judge, Individually and
as an Agent, Agency, and Employee of Muscogee County Georgia
Superior Court,
BROWN & ADAMS, LLC, et al.,

                                               Defendants - Appellees.
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                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________

                                (November 13, 2018)

Before NEWSOM, FAY, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Plaintiff Emmett Williams, proceeding pro se, contends that each Defendant

violated his constitutional rights, and his rights under Title VII of the Civil Rights

Act of 1964, during the litigation of his personal injury action against Defendant

Brooks Trucking Company, Inc. The district court granted all of Defendants’s

motions to dismiss. After careful review, we affirm.

I.    BACKGROUND
      A.     Factual Background
      On September 14, 2006, Plaintiff filed suit against Defendant Brooks

Trucking in the Superior Court of Muscogee County, Georgia, seeking to recover

for personal injuries allegedly sustained by him in an automobile accident

occurring on September 17, 2004 (“Williams I”). On, February 3, 2011, Plaintiff

voluntarily dismissed his personal injury action without prejudice.

      On August 3, 2011, Plaintiff filed a renewal action against Brooks Trucking

in the Superior Court of Muscogee County, Georgia (“Williams II”). Defendant

Canal Insurance Company insured Brooks Trucking. Canal Insurance provided
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defense counsel Richard A. Marchetti of Brown & Adams, LLC, to represent

Brooks Trucking in the matter. On October 13, 2012, following trial, the jury

reached a verdict in favor of Brooks Trucking.

      On November 9, 2012, Plaintiff, represented by counsel, filed a motion for a

new trial, asserting that the verdict was contrary to law and against the weight of

the evidence. On April 9, 2013, Plaintiff filed a pro se motion for an appeal in the

renewed personal injury action, arguing that Brooks Trucking’s counsel, Marchetti,

had improper contact with jurors during the deliberation process. Plaintiff asserted

a violation of his “Constitutional Rights as to having a fair, just, equal and

impartial trial.” Plaintiff’s counsel filed an amended motion for new trial

contending that the alleged improper contact with jurors justified a new trial.

      On September 18, 2013, Honorable William Rumer, Judge of the Superior

Court of Muscogee County, denied Plaintiff’s motion for a new trial. Plaintiff

appealed to the Georgia Court of Appeals, but the Court of Appeals dismissed the

appeal on October 30, 2014, because Plaintiff failed to pay filing fees.

      On August 4, 2015, Plaintiff, proceeding pro se, filed suit in the Superior

Court of Muscogee County against Defendant Brooks Trucking and its prior

counsel, Marchetti (“Williams III”). Plaintiff alleged that Marchetti and Brooks

Trucking violated his constitutional rights to a “Fair, Equal, Just, and Impartial

Trial on October 13, 2012” by Marchetti allegedly contaminating the jury which


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heard the Williams II case. Defendant Mark Lefkow of Nall & Miller, LLP,

represented Marchetti in Williams III. Defendant Clayton M. Adams of Brown &

Adams, LLC, represented Brooks Trucking in Williams III. Plaintiff did not name

Canal Insurance as a defendant in Williams III but, without leave of the court,

attempted to add it as a defendant. Canal Insurance retained John T. Sparks of

Austin & Sparks, P.C., to represent it in Williams III.

      On October 27, 2015, Judge Rumer dismissed Plaintiff’s claims in Williams

III on multiple grounds, including: (1) that the two-year statute of limitations

applicable to constitutional claims had expired; (2) that Marchetti was not properly

characterized as a state actor for purposes of constitutional liability; and (3) that

“[t]he undisputed evidence conclusively demonstrates that jury tampering did not

occur.” On January 10, 2017, the Georgia Court of Appeals affirmed Judge

Rumer’s dismissal order in Williams III. The Georgia Court of Appeals stated that

Judge Rumer’s dismissal order was “correct for many reasons” but focused on

Plaintiff’s failure to submit evidence that Marchetti improperly communicated with

jurors during deliberations.

      B.     Procedural History

      Plaintiff filed a complaint in the United States District Court for the Middle

District of Georgia on March 10, 2017. The complaint asserts that Defendants

violated Plaintiff’s constitutional due process and Thirteenth Amendment rights,


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obstructed justice, and violated his rights under Title VII of the Civil Rights Act of

1964. Plaintiff later claimed that Defendants also engaged in extortion, mail fraud,

and racketeering. Plaintiff grounds all his claims on his assertion that Marchetti

contaminated the jury in Williams II and that, consequently, he should have been

granted another jury trial.

      Defendants moved to dismiss Plaintiff’s claims. On June 5, 2017, the

district court granted all of Defendants’s motions and entered judgment for

Defendants. The district court noted:

      It is unclear what conduct Williams believes violates Title VII’s
      prohibition of employment discrimination or the Thirteenth
      Amendment’s prohibition of slavery, and the Court finds both of these
      provisions inapplicable to the facts of this case. Williams’s claims of
      extortion and racketeering appear to be based on him paying a filing
      fee and other costs associated with the state court constitutional action
      [Williams III]. See Pl.’s Resp. 4, ECF No. 33. Williams’s claims for
      mail fraud appear to be based on Defendants serving Williams with
      documents throughout that litigation. See Pl.’s Suppl. Resp. Ex. F,
      Mail Fraud, ECF No. 44. None of this conduct violates the law. The
      Court finds that Williams’s claims are best characterized as 42 U.S.C.
      § 1983 claims for violations of the due process clause of the
      Fourteenth Amendment to the United States Constitution.

      The district court found that the Rooker-Feldman doctrine precluded review

of Plaintiff’s claims against Judge Rumer and that Judge Rumer would be entitled

to judicial immunity even if the Rooker-Feldman doctrine did not apply. With

respect to the remaining Defendants, the district court found that Plaintiff’s claims

are likely barred by res judicata since those claims were adjudicated in the


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Williams III state court action, but noted that Defendants did not raise that defense.

The court dismissed Plaintiff’s claims against the private Defendants because

Plaintiff failed to allege any connection between them and the state and, thus,

failed to allege that they acted under color of law for purposes of 42 U.S.C. § 1983.

      Plaintiff timely appealed.

II.   DISCUSSION
      A.     Standard of Review

      “Whether an official is entitled to absolute immunity is a question of law

that we review de novo.” Stevens v. Osuna, 877 F.3d 1293, 1301 (11th Cir. 2017).

We also review de novo dismissals for lack of subject matter jurisdiction pursuant

to the Rooker-Feldman doctrine. Nicholson v. Shafe, 558 F.3d 1266, 1270 (11th

Cir. 2009). Finally, “[w]e review de novo the district court’s grant of a motion to

dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff.” Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008) (per

curiam). “We are not, however, required to accept the labels and legal conclusions

in the complaint as true.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir.

2010); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). “To survive a motion to

dismiss, a complaint need only present sufficient facts, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Renfroe v. Nationstar Mortg., LLC,


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822 F.3d 1241, 1243 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “A complaint is plausible on its face when it contains

sufficient facts to support a reasonable inference that the defendant is liable for the

misconduct alleged.” Gates v. Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018)

(citing Ashcroft, 556 U.S. at 678).

       B.     The District Court Properly Dismissed Plaintiff’s Claims

       We agree with the district court’s determination that Plaintiff failed to allege

facts to support his Title VII claim. Title VII prohibits certain workplace

discrimination. 42 U.S.C. § 2000e-2; Reeves v. C.H. Robinson Worldwide, Inc.,

594 F.3d 798, 807 (11th Cir. 2010). At the very least, one must allege an

employment relationship to properly plead a Title VII claim. Id.; see Equal

Employment Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018,

1024 (11th Cir. 2016) (“[A] Title VII plaintiff must demonstrate that an employer

intentionally discriminated against her on the basis of a protected characteristic.”).

Plaintiff did not allege that any Defendant employed him and his Title VII claim

fails for at least that reason.

       We also agree with the district court’s determination that Plaintiff failed to

allege facts to support a Thirteenth Amendment claim. The Thirteenth

Amendment provides that “[n]either slavery nor involuntary servitude, except as a

punishment for [a] crime . . . shall exist within the United States.” U.S. Const.


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amend XIII, § 1. Plaintiff did not allege any facts tending to establish that he was

enslaved, subject to involuntary servitude, or otherwise subject to conduct that

constitutes a “badge or incident of slavery.” See Terry Properties, Inc. v. Standard

Oil Co. (Ind.), 799 F.2d 1523, 1536 (11th Cir. 1986).

       Moreover, Plaintiff does not have any valid constitutional claim against any

of the Defendants. As the district court correctly concluded, absolute immunity

protects Judge Rumer from liability for damages for acts committed within his

judicial jurisdiction.1 Stevens, 877 F.3d at 1301, citing Cleavinger v. Saxner, 474

U.S. 193, 199 (1985). “The immunity applies even when the judge’s conduct ‘was

in error, was done maliciously, or was in excess of his authority . . . .’” Id.,

quoting Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Nor can Plaintiff’s

constitutional claims be sustained against the remaining Defendants who are all

private persons or entities. See Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982)


1
  We agree with the district court that the Rooker-Feldman doctrine also bars Plaintiff’s efforts
to overturn Judge Rumer’s rulings. We apply Rooker-Feldman to bar “claims asserted by parties
who have lost in state court and then ask the district court, ultimately, to review and reject a state
court’s judgments.” Target Media Partners v. Specialty Mktg. Corp., 881 F.3d 1279, 1286 (11th
Cir. 2018). “To determine which claims invite rejection of a state court decision, we . . .
consider whether a claim was either (1) one actually adjudicated by a state court or (2) one
‘inextricably intertwined’ with a state court judgment.” Id., quoting Casale v. Tillman, 558 F.3d
1258, 1260 (11th Cir. 2009). A claim is “inextricably intertwined” if it asks to “effectively
nullify the state court judgment, or it succeeds only to the extent that the state court wrongly
decided the issues.” Id. (internal quotation marks and citation omitted). Plaintiff’s complaint
makes clear that he seeks an impermissible review and rejection of the state court judgment,
specifically requesting “a WRIT that will Strike Down, Throw Out, and Remove Judge Rumer’s
Unconstitutional and Discriminatory October 27, 2015, DISMISSAL and SUMMARY
JUDGMENT ORDER . . .”


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(Fourteenth Amendment “applies to acts of the states, not to acts of private persons

or entities.”).

       Plaintiff also failed to allege facts sufficient to sustain claims of extortion,

racketeering, and mail fraud he made during the course of litigation. We agree

with the district court’s assessment that “Williams’s claims of extortion and

racketeering appear to be based on him paying a filing fee and other costs

associated with the state court constitutional action [Williams III],” and his claims

for “mail fraud appear to be based on Defendants serving Williams with

documents throughout the litigation.” None of those actions constitute unlawful

conduct on the part of any Defendant, much less extortion, racketeering, or mail

fraud. See 18 U.S.C. § 1951 (defining extortion); 18 U.S.C. § 1341 (defining mail

fraud); 18 U.S.C. § 1961 (defining racketeering activity).

       Moreover, we cannot sustain Plaintiff’s claims even if they are liberally

construed as an alleged violation of 42 U.S.C. § 1983. “A successful section 1983

action requires that the plaintiff show [he] was deprived of a federal right by a

person acting under color of state law.” Stephens v. DeGiovanni, 852 F.3d 1298,

1314 (11th Cir. 2017), quoting Almand v. DeKalb Cty., 103 F.3d 1510, 1513 (11th

Cir. 1997). “A person acts under color of state law when he acts with authority

possessed by virtue of his employment with the state.” Id., quoting Griffin v. City

of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). The private Defendants in


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this case were not acting under color of state law in defending against Plaintiff’s

personal injury action.

       Nor is there a basis to suggest that any private party conspired with a state

actor to deny Plaintiff his rights. “[P]rivate defendants can be held liable in a

§ 1983 action if they act in concert with . . . state officials in depriving a plaintiff of

constitutional rights.” Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990).

“To prove a 42 U.S.C. § 1983 conspiracy, a plaintiff must show the parties reached

an understanding to deny the plaintiff his or her rights and prove an actionable

wrong to support the conspiracy.” Bailey v. Bd. of Cnty. Comm’rs, 956 F.2d 1112,

1122 (11th Cir. 1992), quoting Bendiburg, 909 F.2d at 468. An “understanding”

and “willful participation” between private and state defendants is necessary to

show the kind of joint action that will subject private parties to § 1983 liability.

Bendiburg, 909 F.2d at 469. Section 1985 similarly requires a conspiracy to

deprive Plaintiff of equal protection of the laws to establish a cause of action for

obstruction of justice. 42 U.S.C. § 1985(2), (3); Childree v. UAP/GA AG CHEM,

Inc., 92 F.3d 1140, 1147 (11th Cir. 1996). The private Defendants’s defense of

Plaintiff’s personal injury action before Judge Rumer represents neither reaching

an understanding nor willful participation with Judge Rumer in a conspiracy to

subvert Plaintiff’s rights.




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       Despite liberally construing Plaintiff’s pleadings and subsequent filings, we

see no viable cause of action. 2

III.   CONCLUSION

       For the reasons explained above, we AFFIRM the decision of the district

court.3

2
   Plaintiff’s claim that “the District Court unconstitutionally Discriminated and Obstructed
Justice against the Plaintiff Emmett L. Williams’ Constitutional Rights on June 5th, 2017 when
he unconstitutionally DENIED and DEPRIVED the Plaintiff Emmett L. Williams of his Rights
to Hire Professional Legal Counsel or Attorneys” to protect his rights is baseless. Plaintiff
brought this action pro se on March 10, 2017. He represented in late April 2017 that he would
“be hiring brand new attorneys during the month of May 2017” while demanding a $2.5 million
dollar settlement. Plaintiff later represented that he “has already made arrangements as to
Constitutionally Hiring Attorneys during the month of May 2017.” On May 1, 2017, Plaintiff
reiterated that he would be hiring “Brand New Attorneys . . . in the month of May” and stated
that Defendants faced a summer 2017 “trial seeking the Relief Amount of $180 million” if
Defendants did not pay $2.5 Million by May 11, 2017. Despite his previous representations, on
May 25, 2017, Plaintiff stated that he “has been working DILIGENTLY as to hiring NEW
ATTORNEYS which will be DETERMINE [sic] in the month of June 2017.” Under the
circumstances, the district court did not err in ruling on Defendants’ already briefed motions to
dismiss before Plaintiff retained counsel. Pro se litigants are subject to the relevant law and
rules of court, including the Federal Rules of Civil Procedure. Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989). Plaintiff did not move to stay the proceedings while he sought to retain
counsel. To the contrary, he pushed for immediate settlement under threat of a quick trial. Even
if we were to construe Plaintiff’s representations regarding hiring of counsel as a motion for a
stay and a request for supplemental briefing, the district court acted within its discretion to rule
on the pending motions to dismiss. See Arabian Am. Oil Co. v. Scarfone, 939 F.2d 1472, 1479
(11th Cir. 1991) (district court did not abuse its discretion in denying continuance and
proceeding with trial after permitting counsel to withdraw where party engaged in pattern of
dilatory tactics).
3
  In his reply brief, Plaintiff maintains that this Court’s August 8, 2017, decision denying his
“Motions . . . for an En Banc Session and Panel for Appeal Case Number 17-12630-E and for
Summary Judgment for a Total of Five (5) Percent (%) of the $180 Million Relief that was
Requested or $9 Million to be Granted to the Plaintiff/Appellant Emmett L. Williams” deprived
him of his constitutional rights. We see no error in that decision. Among other things, Plaintiff’s
motion failed to comply with the requirements of a Petition for Hearing En Banc as specified in
Federal Rule of Appellate Procedure 35. An en banc hearing “is not favored and ordinarily will
not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of
the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Fed.
R. App. P. 35(a). Neither circumstance exists here.
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