              Case: 18-14779    Date Filed: 08/05/2019   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-14779
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 0:18-cv-61686-BB

KENNETH A. FRANK,
                                                                Plaintiff-Appellant,


                                      versus


DAVID SCHULSON,
Assistant State Attorney in Individual Capacity,
JOEL T. LAZARUS,
In Individual Capacity,
et al.,
                                                            Defendants-Appellees.

                          ________________________

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

                                 (August 5, 2019)



Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Kenneth Frank, a Florida state pretrial detainee proceeding pro se, appeals

the district court’s order dismissing without prejudice his civil rights complaint, in

which he alleged claims under, inter alia, 42 U.S.C. § 1983 and the Racketeer-

Influenced and Corrupt Organizations Act (“RICO”). After Frank filed his original

complaint, a magistrate judge determined that it was deficient for several reasons,

including under Fed. R. Civ. P. 8(a)(2) and 10(b), and ordered him to file a proper

amended complaint. After Frank filed his amended pleading, the magistrate judge

concluded that he failed to comply with the previous order and recommended that

the district court dismiss the action without prejudice. The district court adopted

the recommendation and dismissed the case without prejudice. Frank now

challenges that dismissal.1

      We have held that federal courts have the power to manage their dockets and

curb vexatious litigation. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863-

64 (11th Cir. 2004); see also Smith v. Psychiatric Solutions, Inc., 750 F.3d 1253,

1262 (11th Cir. 2014) (“District courts have unquestionable authority to control

their own dockets . . . , [which] includes broad discretion in deciding how best to

manage the cases before them.”). We review district courts’ decisions managing

their dockets for abuse of discretion. See Young, 358 F.3d at 863–64 (reviewing

various district court decisions made in the course of managing its docket for abuse

      1
        Because Frank does not challenge the original order to amend his complaint, he has
abandoned any claim in that regard. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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of discretion). Additionally, we have held that a district court may also dismiss an

action sua sponte, “as long as the procedure employed is fair.” Tazo v. Airbus

S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011). “To employ fair procedure, a district

court must generally provide the plaintiff with notice of its intent to dismiss or an

opportunity to respond.” Id. (quotation omitted).

      “Discretion means the district court has a range of choice, and that its

decision will not be disturbed as long as it stays within that range and is not

influenced by any mistake of law.” Betty K Agencies, Ltd., 432 F.3d at 1337

(quotations omitted). Notably, “dismissal upon disregard of an order, especially

where the litigant has been forewarned, generally is not an abuse of discretion.”

Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Further, a dismissal

without prejudice generally does not constitute an abuse of discretion because the

party may simply re-file the complaint. See Dynes v. Army Air Force Exch. Serv.,

720 F.2d 1495, 1499 (11th Cir. 1983) (holding that dismissal without prejudice for

failure to comply with a court order was not an abuse of discretion).

      Ultimately, we will not reverse a “harmless” error. See Fed. R. Civ. P. 61;

Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). An

error is harmless if it does not affect an aggrieved party’s substantial rights. Perry

v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984). Finally,

although pro se complaints must be liberally construed, Trawinski v. United Tech.,


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313 F.3d 1295, 1297 (11th Cir. 2002), such complaints still must comply with the

procedural rules governing the proper form of pleadings, McNeil v. United States,

508 U.S. 106, 113 (1993).

      Under Rule 8(a)(2), 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).

Under Rule 10, a party must state his claim in numbered paragraphs, each limited

as far as practicable to a single set of circumstances, and each claim must be stated

in a separate count. Fed. R. Civ. P. 10(b). A complaint that violates either Rule

8(a)(2) or Rule 10(b), or both, is often referred to as a “shotgun pleading.”

Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015).

We have identified four types of shotgun pleadings, including, for example,

complaints that contain multiple counts, each of which incorporates the factual

allegations of the preceding sections, causing each count to contain factual

allegations irrelevant to the underlying claim; and complaints that are replete with

conclusory, vague, and immaterial facts not connected to any particular cause of

action. Weiland, 792 F.3d at 1321-23. The “unifying characteristic” of all shotgun

pleadings is that they fail “to give the defendants adequate notice of the claims

against them and the grounds upon which each claim rests, and do not adequately

specify which “allegations of fact are intended to support which claim(s) for

relief.” Id. at 1323, 1325 (quotation omitted). We have repeatedly condemned the


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use of such pleadings. Maglutta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).

The district court’s discretion to control its docket will, in some circumstances,

include the power to dismiss a complaint for failure to comply with Rule 8(a)(2)

and Rule 10(b). Weiland, 792 F.3d at 1320.

       Here, the district court did not abuse its discretion in dismissing without

prejudice Frank’s amended complaint. 2 At the outset, although, as Frank notes,

the prisoner civil rights form the magistrate judge required did not precisely fit his

situation, there is no indication that the magistrate judge or district court made any

decision based on the content of the form, and the form provided Frank ample

space to bring his cause of action in a manner that complied with the Federal Rules

of Civil Procedure. Additionally, the district court conducted a de novo review of

the proceedings, and therefore any oversight by the magistrate judge in requiring

Frank to use this particular form, even if shown, was harmless. Fed. R. Civ. P. 61;

Furcron, LLC, 843 F.3d at 1304.




       2
          We note that Frank did not object to the magistrate judge’s report and recommendation,
but because that order did not warn Frank of the consequences of failing to object, we conclude
that Frank is entitled to appellate review of his claims. See 11th Cir. R. 3-1. Further, we note
that although Fed. R. 41(b) allows a district court to dismiss an action for failure to prosecute or
follow a court order, we conclude that it is unnecessary to address that Rule because the district
court had the authority to dismiss the case under the power to manage its own docket, and to
dismiss the action sua sponte using a fair procedure. See Young v. City of Palm Bay, Fla., 358
F.3d 859, 863-64 (11th Cir. 2004); Tazo v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011).
Here, the procedure was fair because the magistrate judge provided specific instructions and
notified Frank that his case could be dismissed if he failed to comply. See Tazo, 631 F.3d at
1336.
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       A review of the amended complaint itself shows that Frank failed to comply

with the magistrate judge’s order. He used the form, but he also attached several

addenda, which totaled over 120 pages of additional complaint material; his

allegations included irrelevant facts and conclusory allegations; and the complaint

as a whole did not comply with Rules 8(a)(2) and 10(b). Thus, the district court

did not abuse its discretion in dismissing the action, as it did so using a fair

procedure and under its authority to manage its docket. Weiland, 792 F.3d at 1320;

Gratton, 178 F.3d at 1374; Young, 358 F.3d at 863-64. 3

       Finally, Frank’s miscellaneous arguments fail. Service of process on and

answers from the defendants were unnecessary to address the issues that were

present below, all of which involved Frank’s pleading alone. Further, despite

Frank’s argument, there is no indication that the district court’s order has in any

way impacted his free speech rights, and he has not been denied access to the

courts because he is still allowed to refile his action. Additionally, Frank’s

argument that he should have been able to proceed on the merits fails because the

court gave him a chance to do so by filing an amended complaint that complied

with the magistrate judge’s order.



       3
         Moreover, the district court’s dismissal was without prejudice, which generally does not
constitute an abuse of discretion because he can simply re-file his complaint. See Dynes, 720
F.2d at 1499. Frank does not argue that the district court’s order was tantamount to a dismissal
with prejudice due to applicable statutes of limitations or other procedural bars, so he has
abandoned any claim in that regard. Timson, 518 F.3d at 874.
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      Accordingly, the district court was within its discretion to dismiss Frank’s

action without prejudice. We therefore affirm.

      AFFIRMED.




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