Samuel Lee Smith, Jr. v. Jesus Valdivia

USCA11 Case: 24-11700 Document: 19-1 Date Filed: 12/16/2024 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-11700 Non-Argument Calendar ____________________ SAMUEL LEE SMITH, JR., Plaintiff-Appellant, versus JESUS VALDIVIA, Police Officer, THE CITY OF MIAMI BEACH,

Defendants-Appellees.

____________________ Appeal from the United States District Court for the Southern District of Florida USCA11 Case: 24-11700 Document: 19-1 Date Filed: 12/16/2024 Page: 2 of 5

PER CURIAM: Samuel Lee Smith, Jr., proceeding pro se, appeals the district court’s dismissal without prejudice of his complaint. The district court dismissed Smith’s complaint, which alleged a Fourth Amend- ment excessive force violation, for failure to state a claim under 28 U.S.C. § 1915(e)(2). On appeal, Smith argues that his complaint does state a cognizable claim, at least for the alleged assault by the officer. Smith also argues that, even if the complaint does not state a cognizable claim, the district court should have permitted him to amend the complaint.

“We review dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo and view the allegations in the complaint as true.” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). The standards gov- erning dismissals for failure to state a claim under § 1915(e)(2)(B)(ii) are the same as those governing dismissals under Federal Rule of Civil Procedure 12(b)(6). Id. To survive a motion to dismiss under 12(b)(6), the pleading “must contain sufficient factual matter, ac- cepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While a complaint at- tacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and USCA11 Case: 24-11700 Document: 19-1 Date Filed: 12/16/2024 Page: 3 of 5

24-11700 Opinion of the Court 3 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. “At the pleading stage, Rule 8(a)(2) requires that “the ‘plain statement’ possess enough heft to show that the pleader is entitled to relief.” Id. at 557 (quotation omitted). Where a complaint pleads facts that are simply con- sistent with a given defendant’s liability, the complaint “stops short of the line between possibility and plausibility of entitlement to re- lief.” Id. Generally, a plaintiff proceeding pro se must receive at least one opportunity to amend the complaint if he might be able to state a claim by doing so. Woldeab v. Dekalb Cty. Bd. of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018). If the plaintiff clearly indicates he does not want to amend his complaint, or if a plaintiff could not, through amendment, cure the defects in the complaint, a court need not grant leave to amend. Woldeab, 885 F.3d at 1291. Absent one of these exceptions (at least in a case involving a dismissal with prejudice), 1 a district court must advise a pro se plaintiff of the defi- ciencies in his complaint and give him an opportunity to amend. Id. at 1291–92.

Florida’s limitations statute requires an action asserting a Fourth Amendment excessive force claim to be filed within four USCA11 Case: 24-11700 Document: 19-1 Date Filed: 12/16/2024 Page: 4 of 5

In other words, under such circumstances, a dismissal without prej- udice is “‘tantamount to a dismissal with prejudice.’” Id. at 1280 (quoting Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B 1981)).

Here, the district court erred by dismissing the complaint without affording Smith an opportunity to amend. Given the cir- cumstances of this case—i.e. the district court dismissed Smith’s pro se complaint without prejudice and administratively closed the case, and the fact that Smith would now be barred by the statute of limitations from filing a new complaint—he should have been given an opportunity to address the district court’s concerns about his factual allegations, or lack thereof.

USCA11 Case: 24-11700 Document: 19-1 Date Filed: 12/16/2024 Page: 5 of 5

24-11700 Opinion of the Court 5 The judgment of the court below is hereby VACATED, and this case is REMANDED to the district court for further proceed- ings consistent with this opinion.