John Williams Miller v. Christopher Byers

        USCA11 Case: 20-11575    Date Filed: 10/16/2020    Page: 1 of 7

                                                          [DO NOT PUBLISH]


                     FOR THE ELEVENTH CIRCUIT

                              No. 20-11575
                          Non-Argument Calendar

                   D.C. Docket No. 1:18-cv-04322-SDG







                Appeal from the United States District Court
                   for the Northern District of Georgia

                            (October 16, 2020)

Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.

           USCA11 Case: 20-11575            Date Filed: 10/16/2020       Page: 2 of 7

       John Williams Miller (“J.W. Miller”) and his son, John Frazier Miller (“J.F.

Miller”), filed a pro se 42 U.S.C. § 1983 lawsuit alleging that their constitutional

rights under the First and Fourth Amendments were violated by the City of Johns

Creek and three of its police officers (Brian Weaver, John Clifton, and Christopher

Byers), and by Forsyth County and a Forsyth County police officer (Michael Hobbs),

prosecutor (Caroline Yi), and judge (Judge Robert McBurney). The district court

granted the defendants’ motions to dismiss for failure to state a claim and for

judgment on the pleadings, and J.W. Miller appeals. 1 After careful review, we



       The Millers’ operative amended complaint alleges, among other things, that

Hobbs assaulted and attempted to murder J.F. Miller because of his Cherokee

heritage, that Johns Creek and its officers refused to accept a police report about this

incident and made “terroristic threats” against J.W. Miller for trying to file the report,

that J.F. Miller was illegally arrested and prosecuted in Forsyth County despite

         Because J.F. Miller was not named in and did not sign the notice of appeal, and he cannot
be represented by J.W. Miller, who is not an attorney, he is not a proper party to this appeal,
notwithstanding J.W. Miller’s claim of power of attorney. See Fed. R. App. P. 3(c)(1)(A)
(providing that each party taking the appeal must be named in the notice of appeal); Devine v.
Indian River Cty. Sch. Bd., 121 F.3d 576, 581–82 (11th Cir. 1997) (parents appearing pro se who
are not attorneys may not represent their children); Weber v. Garza, 570 F.2d 511, 514 (5th Cir.
1978) (holding that a “power of attorney” does not permit a non-attorney to represent another party
in federal court). J.W. Miller’s motion to join J.F. Miller as an appellant is therefore DENIED.
Regardless, J.F. Miller’s status as a party has no effect on our decision in this case.

           USCA11 Case: 20-11575            Date Filed: 10/16/2020       Page: 3 of 7

committing no crime, and that Forsyth County Judge McBurney conspired with

corrupt police officers to deny J.W. Miller’s attempt to have a warrant issued for

Hobbs’s arrest for felony assault and attempted murder. These actions, according to

the Millers, caused J.F. Miller to drop out of college and resulted in the death of J.W.

Miller’s mother. Bringing claims under § 1983 for violations of their First and

Fourth Amendment rights, the Millers sought $285 million in damages and

demanded a jury trial.

       The defendants filed motions to dismiss the complaint for failure to state a

claim and for judgment on the pleadings, and the district court stayed discovery

pending a ruling on these motions. Meanwhile, the Millers repeatedly filed motions

demanding, among other things, a jury trial.

       The district court granted the defendants’ motions and denied the Millers’

motions. In an exhaustive 86-page order, the court determined that the Millers’

allegations, accepted as true, did not state plausible claims to relief under 42 U.S.C.

§ 1983, that Forsyth County was not properly served, and that the individual

defendants apart from Hobbs were entitled to qualified, prosecutorial, or judicial

immunity.2 The court permitted them to file a second amended complaint repleading

their claims against Johns Creek and Hobbs within 21 days. Instead of doing so,

         The district court explained that the Millers failed to allege sufficient facts to state a
plausible claim against Hobbs, but that Hobbs would not entitled to qualified immunity if, as the
Millers asserted, he attempted to kill J.F. Miller because of his Cherokee heritage.

           USCA11 Case: 20-11575        Date Filed: 10/16/2020       Page: 4 of 7

J.W. Miller requested reassignment of the case to a different judge, which was

denied, and filed a notice of appeal. When the period for amendment passed, the

district court entered a final judgment dismissing the case with prejudice.


       We review de novo an order granting a motion to dismiss for failure to state a

claim, Cisneros v. Petland, Inc., 972 F.3d 1204, 1210 (11th Cir. 2020), or a motion

for judgment on the pleadings, Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367,

1370 (11th Cir. 1998). In reviewing the granting of either motion, we ask whether

the complaint’s allegations, accepted as true and construed in the light most

favorable to the plaintiff, state a plausible claim to relief. Cisneros, 972 F.3d at 1210

(concerning dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6)); see

Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018) (“A

motion for judgment on the pleadings is governed by the same standard as a motion

to dismiss under Rule 12(b)(6).”).

       Because J.W. Miller is proceeding pro se, we liberally construe his pleadings

in the district court and his briefing on appeal. Timson v. Sampson, 518 F.3d 870,

874 (11th Cir. 2008). Despite this liberal construction, “issues not briefed on appeal

by a pro se litigant are deemed abandoned.” Id. We also “do not address arguments

raised for the first time in a pro se litigant’s reply brief.” Id.

          USCA11 Case: 20-11575         Date Filed: 10/16/2020    Page: 5 of 7

      Here, J.W. Miller fails to challenge the grounds for the district court’s decision

to grant the defendants’ motions to dismiss and for judgment on the pleadings.

Construing his opening brief liberally, he makes two, and only two, arguments.

First, he contends that the district court violated his Seventh Amendment right to a

jury trial by dismissing the case. Second, he suggests that the district judge should

have recused from the case, asserting that the judge, in collaboration with the

defendants, issued a “biased,” “hateful,” and “illegal” ruling against the Millers. But

he does not raise any issue with, and therefore has abandoned any challenge to, the

specific reasons given for dismissing the amended complaint. See id. And while his

reply brief contains additional arguments not raised in his opening brief, “we do not

address arguments raised for the first time in a pro se litigant’s reply brief.” Id.

      Nor are we persuaded by J.W. Miller’s jury-trial and recusal arguments. It is,

of course, true that the Seventh Amendment preserves the right to a jury trial in civil

cases. U.S. Const. amend. VII. But the Federal Rules of Civil Procedure authorize

a district court before trial to grant a motion to dismiss for failure to state a claim or

a motion for judgment on the pleadings. See Fed. R. Civ. P. 12(b)(6), (c). In granting

a motion under Rule 12(b)(6) or Rule 12(c), the court makes a legal determination

that the plaintiff cannot plausibly prevail under the facts alleged, even if those facts

are accepted as true and construed in the plaintiff’s favor. See Cisneros, 972 F.3d at

1210; Carbone, 910 F.3d at 1350. And we have held that a district court’s resolution

           USCA11 Case: 20-11575           Date Filed: 10/16/2020      Page: 6 of 7

of a case based on a matter of law, before trial, does not violate the Seventh

Amendment. See Jefferson v. Sewon Am., Inc., 891 F.3d 911, 919–20 (11th Cir.

2018) (holding that summary judgment before trial does not violate the Seventh

Amendment); Garvie v. City of Ft. Walton Beach, Fla., 366 F.3d 1186, 1190 (11th

Cir. 2004) (same); see also Oglesby v. Terminal Transp. Co., Inc., 543 F.2d 1111,

1113 (5th Cir. 1976) (“No constitutional right to trial exists when . . . [no] dispute of

material fact exists which a trial could resolve.”).3 It follows that, even though the

district court’s ruling prevented the Millers’ case from going to a jury, the court did

not violate the Millers’ right to a jury trial by resolving this case based on an

assessment of the legal sufficiency of the allegations in the amended complaint.

       Nor is there any basis for recusal of the district judge. J.W. Miller does not

explain what was “hateful” or “biased” about the judge’s ruling other than the fact

that the judge ruled against him and his son. But an adverse decision, in and of itself,

is not grounds for recusal. See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000)

(generally, “a judge’s rulings in the same or a related case are not a sufficient basis

for recusal”). Moreover, as we have explained, the judge’s decision was permitted

under the rules and was an ordinary part of litigation, not “illegal” or otherwise

suspect. Finally, J.W. Miller’s vague claim that the judge failed to address his

         See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1,
           USCA11 Case: 20-11575           Date Filed: 10/16/2020       Page: 7 of 7

arguments or ignored his filings is difficult to square with the judge’s exhaustive 86-

page order. As we see it, the judge took great pains to respond to the Millers’

manifold allegations and voluminous filings, and there is absolutely no indication

that the judge gave them short shrift.

       For these reasons, we affirm the district court’s judgment dismissing the

Millers’ amended complaint. 4


           J.W. Miller has submitted several filings to this Court which have been docketed as
motions for clarification, to compel, and for summary reversal or summary judgment. These
motions largely restate arguments made in his briefing and are DENIED to that extent for the
reasons already stated. To the extent J.W. Miller requests relief in the form of discovery, a jury
trial, or summary judgment or reversal, the motions are DENIED as moot.
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