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                                                          [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-11134
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 2:11-cv-14262-JEM



ANGEL L. ROSA,

                                                             Plaintiff-Appellant,

                                   versus

FLORIDA DEPARTMENT OF CORRECTIONS,
REGIONAL DIRECTOR MARTA VILLA-CORTA,
OFC. MOORE,
State Classification Officer,
WARDEN, HARDEE CORRECTIONAL INSTITUTE,
ASST. WARDEN, HARDEE CORRECTIONAL INSTITUTION,
c/o Ms. Anderson, et al.,

                                                         Defendants-Appellees.

                        ________________________

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

                               (June 26, 2013)
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Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:

      Angel L. Rosa proceeding pro se, appeals the district court’s dismissal of his

action, filed pursuant to 42 U.S.C. § 1983, against the Florida Department of

Corrections (“DOC”) and various DOC employees, for failure to state a claim

under 28 U.S.C. § 1915(e)(2)(B)(ii). On appeal, Rosa asserts that his original

complaint adequately stated a claim for relief and that the magistrate judge erred in

requiring him to file an amended complaint. For the reasons set forth below, we

affirm the dismissal of Rosa’s complaint.

                                          I.

      On July 22, 2011, Rosa, a Florida prisoner, filed a pro se § 1983 complaint

against the DOC and numerous DOC officials. In his complaint, Rosa alleged that

several DOC officials conspired to retaliate against him for filing complaints

against them. Further, he requested that the district court review all of his exhibits

to “ascertain the seriousness” of his allegations. Rosa detailed the numerous

grievances that he had filed against DOC officers at Hardee Correctional

Institution (“Hardee CI”), where he had been incarcerated in 2009. On August 31,

2010, Rosa was transferred to Martin Correctional Institution (“Martin CI”). Rosa

asserted that he was retaliated against through “bogus disciplinary reports,” mental

trauma, duress, inadequate food supply, and deliberate indifference to his safety.


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Further, he claimed that DOC officials “maliciously and sadistically” searched him

and seized his property, in violation of the Fourth Amendment. Finally, Rosa

alleged that he was transferred from Martin CI to Everglades Correctional

Institution in retaliation. Rosa named 18 defendants, including several officials

from Hardee CI and Martin CI.

      On August 24, 2011, the magistrate judge ordered Rosa to file an amended

complaint. The magistrate noted that Rosa was apparently claiming retaliation at

various correctional institutions for being a “writ writer.” However, Rosa named

multiple defendants, and his allegations were confusing and unclear. Further,

many of the allegations involved defendants who are employed at Hardee CI,

which is located in the Middle District of Florida, and any allegations against those

individuals must be filed in that district. However, Martin CI was located in the

Southern District of Florida and, thus, the magistrate instructed Rosa to file a

proposed amended complaint, naming the specific acts of retaliation that took

place at Martin CI, and the specific defendants, employed by Martin CI, who were

responsible for those acts.

      On September 1, 2011, Rosa filed a motion to amend the complaint and

included the first amended complaint. Subsequently, on September 22, 2011, Rosa

filed a motion for an extension of time to file a second amended complaint. The




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magistrate granted Rosa’s motion and cautioned him that, if he filed a second

amended complaint, his first amended complaint would not be reviewed.

      On October 14, 2011, Rosa filed a second amended complaint against

Walter A. McNeil, Secretary of the DOC; Marta Villacorta, a regional director

with the DOC; and numerous Martin CI officials, including: (1) Officer Moore;

(2) Thomas Reid, the warden; (3) Mr. Inman, an assistant warden; (4) Officer

Posten; (5) Lieutenant Bartfield; (6) Lieutenant Morales; (7) Sergeant Bator;

(8) Officer Marrero; (9) Officer Lawrence; (10) Major Collins; (11) Inspector

Buchanan; and (12) Officer Harris. In his complaint, Rosa reasserted that DOC

officials had retaliated against him for exercising his constitutional rights, and he

specified his claims against each defendant. In support, Rosa filed over 100 pages

of exhibits.

      On November 22, 2011, the magistrate conducted a preliminary screening of

the second amended complaint and issued a report and recommendation (“R&R”)

that it be dismissed for failure to state a claim pursuant to § 1915(e)(2)(B)(ii). The

magistrate also recommended that Rosa’s prior complaints be dismissed. As to the

sufficiency of the second amended complaint, the magistrate found that Rosa’s

claims against Secretary McNeil, Director Villacorta, Warden Reed, and Assistant

Warden Inman failed to state a claim under § 1983. Specifically, Rosa failed to

state a claim under § 1983 because he did not allege that these defendants were


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directly involved in a constitutional violation and their liability was based solely on

their supervisory positions. Moreover, Rosa failed to show a causal link between a

government policy or custom and an alleged injury.

      The magistrate further found that Rosa’s allegations against Lieutenant

Bartfield and Sergeant Bator were conclusory and failed to state a specific

constitutional violation. Rosa alleged that Officers Marrero and Lawrence would

do “all possible when told to retaliate” and would usually retaliate against inmates

by writing false reports. However, these claims were also “completely

conclusory,” and, further, they were unrelated to Rosa. Next, Rosa alleged that

Major Collins was advised that his officers were harassing, intimidating, and

threatening Rosa, which resulted in an unsafe environment. However, Rosa did

not provide specific facts as to the acts of retaliation and resulting injuries and, as

such, Major Collins must be dismissed as a defendant. Further, Rosa’s claims—

that Inspector Buchanan did nothing to cure the constitutional violations of her

subordinates and that Officer Harris was involved in transferring Rosa on behalf of

her subordinates—were also “completely conclusory” and failed to state a claim.

Additionally, Rosa’s claim that Officer Morales threatened him with “setting him

up” lacked any supporting facts. Finally, as to Rosa’s claim that the DOC had

denied him adequate meals and sanitary items, the DOC is not a person within the

statute governing § 1983 cases.


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      The magistrate noted that Rosa had submitted over 80 pages of grievances in

support of his complaint. However, the magistrate explained that, to successfully

state a claim under § 1983, Rosa was required to demonstrate, on the face of his

complaint, that the named defendants violated his constitutional rights, and he

failed to do so. Thus, Rosa’s grievances could not be viewed separately to

establish a claim for relief. In sum, the magistrate recommended that the

complaint and first amended complaint be dismissed, and that the second amended

complaint be dismissed for failure to state a claim.

      Over Rosa’s objections, the district court adopted the R&R, and dismissed

the second amended complaint.

                                            II.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), and view the allegations in the

complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).

Although pro se pleadings are afforded a liberal construction, “issues not briefed

on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008).

      Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court shall dismiss a case proceeding

in forma pauperis “at any time if the court determines that . . . the action . . . fails

to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).


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Further, a dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as

a dismissal under Fed.R.Civ.P. 12(b)(6). Alba v. Montford, 517 F.3d 1249, 1252

(11th Cir. 2008). To properly state a claim, a complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.”

Fed.R.Civ.P. 8(a)(2). Although the complaint need not set forth detailed factual

allegations, a plaintiff is required to provide more than mere “labels and

conclusions” and the factual allegations “must be enough to raise a right to relief

above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,

127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Further, the factual allegations

must be sufficient “to state a claim to relief that is plausible on its face.” Id. at 570,

127 S.Ct. at 1974. Thus, mere conclusory statements in support of a threadbare

recital of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). Legal

conclusions can provide a framework for the complaint, but they must be

supported by factual allegations. Id. at 679, 129 S.Ct. at 1950.

      Generally, “where a more carefully drafted complaint might state a claim, a

plaintiff must be given at least one chance to amend the complaint before the

district court dismisses the action with prejudice.” Bryant v. Dupree, 252 F.3d

1161, 1163 (11th Cir.2001). Under the Federal Rules of Civil Procedure, “an

amended complaint supersedes the initial complaint and becomes the operative


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pleading in the case.” Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th

Cir. 2011). Further, while pro se pleadings are liberally construed, “this leniency

does not give a court license to serve as de facto counsel for a party, or to rewrite

an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v.

Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted),

overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 706

(11th Cir. 2010).

      “In order to prevail on a civil rights action under § 1983, a plaintiff must

show that he or she was deprived of a federal right by a person acting under color

of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).

“The First Amendment forbids prison officials from retaliating against prisoners

for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235, 1248

(11th Cir.2003). An inmate raises a First Amendment claim of retaliation if he

shows that the prison official disciplined him for filing a grievance concerning the

conditions of his imprisonment. Id. Government officials, however, “may not be

held liable for the unconstitutional conduct of their subordinates under a theory of

respondeat superior” in a § 1983 action. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948.

Because vicarious liability is inapplicable to § 1983 actions, “a plaintiff must plead

that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Id. Finally, “[a] state, a state agency, and a


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state official sued in his official capacity are not ‘persons’ within the meaning of §

1983.” Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995).

However, government entities may be held liable under § 1983 for the execution of

a governmental policy or custom. See Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).

      As a preliminary matter, on appeal, Rosa appears to discuss only the

adequacy of his original complaint, without specifically addressing the allegations

in his second amended complaint. Thus, he may have abandoned any argument

that his second amended complaint adequately stated a claim for relief. See

Timson, 518 F.3d at 874. However, Rosa generally challenges the dismissal of his

case for failure to state a claim, and his second amended complaint was the

operative complaint before the district court when it dismissed his case. See

Krinsk, 654 F.3d at 1202. Thus, construing Rosa’s brief liberally, we conclude that

he has sufficiently challenged the dismissal of his second amended complaint. See

Timson, 518 F.3d at 874

      Further, the appellees suggest that Rosa is barred from challenging the

magistrate’s order that instructed him to file an amended complaint. However,

because the magistrate’s order was not the final judgment in the case, it appears

that we may review Rosa’s arguments regarding the order. See Barfield v.

Brierton, 883 F.2d 923, 930-31 (11th Cir. 1989) (holding that, when reviewing a


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final judgment, we generally also have jurisdiction to review “all prior non-final

orders and rulings which produced the judgment”). Additionally, although Rosa

complied with the order, he argued, in his objections to the R&R, that the

magistrate misconstrued his original complaint and erred in requesting an amended

complaint. Thus, it appears that Rosa has preserved this argument for appeal.

      Regardless, neither of Rosa’s complaints provided sufficient factual

allegations to comply with the pleading standards set forth in Twombly and Iqbal.

Rosa’s original complaint asserted that various DOC officials: (1) retaliated against

him for filing grievances, (2) conspired to place him in an unsafe environment,

(3) exhibited deliberate indifference to the actions of their subordinates; and

(4) maliciously searched him and seized his property. However, his allegations

were insufficient to state a claim for relief because he failed to provide sufficient

factual support for these alleged violations. See Twombly, 550 U.S. at 555, 127

S.Ct. at 1964-65; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949-50. Instead, Rosa

provided only vague and conclusory allegations and requested that the district

court review his exhibits to “ascertain the seriousness” of his claims. For example,

Rosa alleged that “the three amigos” retaliated against him by filing false

disciplinary reports, but he failed to identify these individuals or describe the false

reports. Further, he alleged that officials engaged in a conspiracy to place him in

an unsafe environment, but he provided no further factual support regarding the


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alleged conspiracy or the unsafe conditions. Although Rosa suggests that the

district court should have reviewed his exhibits to ascertain the factual support for

his claims, the district court was not authorized to “serve as de facto counsel” or to

“rewrite an otherwise deficient pleading.” See GJR Invs., Inc., 132 F.3d at 1369.

Further, Rosa named 18 defendants in his complaint, but failed to clearly indicate

which constitutional violations were committed by each defendant. Although Rosa

was not required to provide detailed factual allegations, his original complaint

failed to provide enough facts, which, if accepted as true, would raise his right to

relief above a speculative level or state a plausible claim for relief. See Twombly,

550 U.S. at 555, 570, 127 S.Ct. at 1964-65, 1974; Iqbal, 556 U.S. at 678, 129 S.Ct.

at 1949-50.

      Because Rosa’s original complaint failed to adequately state a claim for

relief, the magistrate properly provided him with an opportunity to file an amended

complaint. See Bryant, 252 F.3d at 1163. In his second amended complaint, Rosa

complied with the magistrate’s instructions to separate his claims and identify

which defendant committed each alleged constitutional violation. However,

Rosa’s claims either lacked sufficient factual support or failed to state a viable

claim under § 1983. Specifically, Rosa’s claims against Secretary McNeil,

Director Villacorta, Warden Reid, Assistant Warden Inman, Inspector Buchanan,

and Officer Posten were all based on vicarious liability. Rosa alleged that each of


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these DOC officials were deliberately indifferent either to his grievances or to the

retaliatory actions of their subordinates. Additionally, he alleged that Inspector

Buchanan failed to cure the constitutional violations of her subordinates.

However, Rosa did not allege that these supervisory DOC officials had any

personal involvement in a constitutional violation. Because vicarious liability is

inapplicable to § 1983 actions, Rosa failed to state a plausible claim for relief

against these defendants. See Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948; Twombly,

550 U.S. at 570, 127 S.Ct. at 1974.

      Rosa’s claims against the remaining defendants were too conclusory and

vague to satisfy the pleading standards set forth in Twombly and Iqbal.

Specifically, Rosa asserted that Lieutenant Bartfield was known to retaliate against

inmates and that Officer Moore established a conspiracy to place Rosa in an unsafe

environment. Further, Rosa alleged that Sergeant Bator influenced the retaliatory

actions of others and that Officers Marrero and Lawrence would “do all possible

when told to retaliate.” Rosa also alleged that Major Collins was deliberately

indifferent to his care and safety, and that Officer Harris was liable for her “no care

policy,” which led to the filing of false reports. As to each of these retaliation

claims, Rosa failed to allege any specific acts of retaliation or to describe the

contents of any false disciplinary reports. Additionally, Rosa alleged that

Lieutenant Morales threatened to “set[] [him] up,” but Rosa provided no other


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factual allegations regarding this incident. Rosa also failed to specify how he was

threatened or how DOC officials conspired against him. Thus, Rosa’s threadbare

assertions of alleged constitutional violations, without further factual support, are

insufficient to state a claim for relief. See Iqbal, 556 U.S. at 678-79, 129 S.Ct. at

1949-50.

      Finally, Rosa alleged that the DOC violated his Eighth Amendment rights by

failing to provide adequate food and necessities. However, Rosa’s allegations did

not provide enough detail to suggest that the DOC violated his rights by executing

a governmental policy or custom. See Monell, 436 U.S. at 690-91, 98 S.Ct. at

2035-36. Thus, the DOC, a government entity, was not subject to liability under

§ 1983. See Edwards, 49 F.3d at 1524.

      In sum, applying the standards set forth in Twombly and Iqbal, Rosa failed to

provide sufficient factual support to state a plausible claim for relief or to raise his

right to relief above a speculative level.

      For the foregoing reasons, we affirm the dismissal of Rosa’s complaints.

      AFFIRMED.




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