[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-11667

Non-Argument Calendar

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D.C. Docket No. 6:19-cv-01437-PGB-EJK

JAMES A. GUSTINO, 

 Plaintiff-Appellant,

 

versus

STONEYBROOK WEST MASTER ASSOCIATION, INC., 

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida 

________________________

(January 4, 2021)

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Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM:

After a Florida appellate court imposed monetary sanctions on James A. 

Gustino for moving to reconsider a clearly untimely petition, he brought First, Fifth, 

and Fourteenth Amendment claims under 42 U.S.C. section 1983 against 

Stoneybrook West Master Association, Inc., and the Florida Attorney General

seeking damages and declaratory and injunctive relief. Gustino appeals the district 

court’s orders dismissing his complaint and denying his motion for reconsideration. 

We affirm the dismissal as to Gustino’s claims against the association, and we vacate 

the district court’s judgment as to the Attorney General and remand with instructions 

to dismiss Gustino’s claims against her for lack of standing. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Gustino, as counsel for Premier Security Services Worldwide, sued the 

association in Florida state court for breach of contract. The association moved to 

disqualify Gustino as Premier Security’s attorney because he previously represented

the association. On September 9, 2014, the state trial court granted the motion and 

disqualified Gustino. 

On October 10, 2014 (thirty-one days after Gustino’s disqualification), he 

petitioned the state appellate court for a writ of certiorari to quash the trial court’s 

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disqualification order. Because Gustino’s petition was untimely,1 the state appellate 

court dismissed it for lack of jurisdiction. See, e.g., Coldwell Banker Com. v. 

Wightman, 649 So. 2d 346, 347 (Fla. 5th DCA 1995) (“[W]e lack jurisdiction to 

consider the merits of the petition for writ of certiorari because it is untimely.”). 

Gustino moved for rehearing. The association responded by moving for attorney’s

fees under Florida Statutes section 57.105. Section 57.105 allows a court to award 

attorney’s fees against a losing party who raised a claim unsupported by the law, 

unless the claim was presented as a good faith argument for modification of the law 

with a reasonable expectation of success. Fla. Stat. § 57.105(1)(b), (3)(a).2

 The 

association argued that Gustino’s petition and motion were meritless because the 

1 See Fla. R. App. P. 9.100(c)(1) (providing that a petition for writ of certiorari must be 

filed within thirty days of rendition of the order under review).

2 Section 57.105 provides:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable 

attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal 

amounts by the losing party and the losing party’s attorney on any claim or defense at any 

time during a civil proceeding or action in which the court finds that the losing party or the 

losing party’s attorney knew or should have known that a claim or defense when initially 

presented to the court or at any time before trial:

* * *

(b) Would not be supported by the application of then-existing law to those material facts.

* * *

(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:

(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially 

presented to the court as a good faith argument for the extension, modification, or reversal 

of existing law or the establishment of new law, as it applied to the material facts, with a 

reasonable expectation of success.

Fla. Stat. § 57.105(1)(b), (3)(a) (2019).

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thirty-day deadline that he missed was jurisdictional and not waivable under Florida 

law. The state appellate court denied Gustino’s motion for rehearing, granted the 

association’s motion for attorney’s fees, and remanded the case to the state trial court 

to determine and assess a reasonable amount of fees. 

In May 2019, the state trial court entered a final judgment ordering Gustino to 

pay $8,362.39 to the association in attorney’s fees. In July 2019, Gustino appealed 

that judgment to the state appellate court “on purely state law” grounds. 

In August 2019, while Gustino’s state appeal of the attorney’s fees judgment 

was pending, he sued the association and the Florida Attorney General in federal 

court. Gustino brought a section 1983 claim for damages under the First, Fifth, and 

Fourteenth Amendments against the association because it sought to enforce an 

unconstitutional statute and judgment against him. Gustino also sought equitable

relief: declaring section 57.105 unconstitutional under the First and Fourteenth 

Amendments, both facially and as applied; declaring the statute and the 2019 

attorney’s fees judgment against him unenforceable; enjoining the enforcement of 

the statute against him and anyone else; and enjoining the association from enforcing 

the attorney’s fees judgment. Gustino alleged that the Attorney General was a proper 

defendant because she was the chief legal officer of Florida, had a duty to defend 

and enforce Florida law, was an elected official, and had broad authority to interpret 

Florida law. 

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The Attorney General and the association moved to dismiss Gustino’s 

complaint. The Attorney General argued that Gustino’s claims should be dismissed 

under the Younger3 abstention doctrine. Younger abstention applied here, the 

Attorney General argued, because Gustino’s state appeal of the attorney’s fees 

judgment against him was pending and he couldn’t show that he lacked an adequate 

remedy in state court to address his federal constitutional claims. The Attorney 

General also argued that Gustino lacked standing to sue her because he failed to 

allege any “causal connection between an action of the Attorney General and any 

injury allegedly suffered by [him].” 

The association argued that Gustino failed to state a plausible section 1983 

claim against it because, as a private homeowners’ association, the association

wasn’t a state entity and didn’t act under color of law. A private entity doesn’t

engage in state action, the association argued, just because it uses a state court to 

obtain a favorable judgment. 

The district court granted the Attorney General’s motion. The district court 

concluded that the state appellate court’s order sanctioning Gustino was uniquely in 

furtherance of the state court’s ability to perform its judicial functions, because 

section 57.105 gives Florida courts the “ability to protect” themselves from “sham 

appeals” and “abuses of the judicial process.” The district court then concluded that: 

3 Younger v. Harris, 401 U.S. 37 (1971).

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(1) there was an ongoing state judicial proceeding (Gustino’s pending state appeal 

of the attorney’s fees judgment); (2) this proceeding implicated the state’s important 

interest in “protecting itself from abuses of the judicial process”; and (3) Gustino 

had an adequate opportunity in his pending state appeal to challenge the 

constitutionality of section 57.105. Gustino had not alleged, the district court 

concluded, that “bad faith, harassment, or some other extraordinary circumstance” 

justified the federal court’s intervention. The district court concluded that Younger

abstention applied and dismissed Gustino’s complaint. 

Gustino moved for reconsideration. He argued that the district court had 

“misinterpret[ed]” various Supreme Court cases applying Younger abstention and 

overlooked the England4 reservation he made in his pending state appeal. Gustino 

also argued that the district court’s order: (1) overlooked cases disapproving of

abstention from First Amendment facial challenges; (2) conflicted with the text and 

purpose of section 1983; (3) failed to address the differences between the claims 

raised in his state appeal and the federal claims he raised here; and (4) erred by

dismissing rather than staying his section 1983 claims for damages.

The Attorney General and the association opposed the motion, both arguing 

that it relitigated issues already rejected by the district court or raised arguments that 

4 See England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411 (1964).

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Gustino could have presented earlier. The Attorney General once again argued that 

Gustino lacked standing to sue her.

The district court denied Gustino’s motion for reconsideration. As to his

Younger abstention arguments, the district court concluded that Gustino was 

improperly relitigating old issues or raising new ones. As to Gustino’s specific claim

that the district court should have stayed his section 1983 claims for damages against 

the association, the district court concluded that this too was a new theory which 

should have been raised earlier. Addressing this claim “in an abundance of caution,”

the district court explained that staying claims for damages is unnecessary where 

they “fail on other grounds.” Gustino’s section 1983 claims against the association 

failed, the district court concluded, because it was a private actor and didn’t act under 

color of state law. 

STANDARDS OF REVIEW

Whether a plaintiff has standing to sue “is a threshold jurisdictional question 

that we review de novo.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 923 

(11th Cir. 2020) (en banc). We review de novo a district court’s dismissal of a 

complaint for failure to state a claim. Henley v. Payne, 945 F.3d 1320, 1326 (11th 

Cir. 2019). We review the district court’s denial of a motion for reconsideration for 

an abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). 

Although we ordinarily construe pro se pleadings liberally, Holsomback v. White, 

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133 F.3d 1382, 1386 (11th Cir. 1998), there’s no need for a liberal construction 

where the pro se litigant is an attorney, Olivares v. Martin, 555 F.2d 1192, 1194 n.1

(5th Cir. 1977). 

DISCUSSION

Gustino argues that the district court erred in concluding that the association 

was not a state actor and dismissing his section 1983 claims against it.

5

 

Gustino’s Standing to Sue the Attorney General

Before we address Gustino’s argument, we first consider whether he has 

standing to sue the Attorney General. See, e.g., MSP Recovery, LLC v. Allstate Ins. 

Co., 835 F.3d 1351, 1357 (11th Cir. 1996) (“Federal courts have an independent 

obligation to ensure that subject-matter jurisdiction exists to hear a case”). The 

“‘irreducible constitutional minimum’ of standing consists of three elements: the 

plaintiff must have suffered an injury in fact, the defendant must have caused that 

injury, and a favorable decision must be likely to redress it.” Trichell v. v. Midland 

Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020) (quoting Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560–61 (1992)). “In plainer language, the plaintiff needs to 

show that the defendant harmed him, and that a court decision can either eliminate 

5 Gustino also argues that the district court erred in dismissing his complaint based on the 

Younger abstention doctrine. Because we conclude that the association was not a state actor and

Gustino lacked standing to sue the Attorney General, we do not reach the Younger abstention 

issues. 

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the harm or compensate for it.” Muransky, 979 F.3d at 924. “Where, as here, a case 

is at the pleading stage, the plaintiff must clearly . . . allege facts demonstrating each 

element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quotation omitted). 

We focus on the causation element of standing. Whenever a party is “dragged 

into court,” the plaintiff must allege that the defendant’s “action or inaction caused 

the plaintiff’s alleged injury.” BBX Capital v. Fed. Deposit Ins. Corp., 956 F.3d 

1304, 1312 (11th Cir. 2020). This element requires “that the plaintiff’s injury be 

fairly traceable to the defendant’s conduct.” Lexmark Int’l, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 134 n.6 (2014). The Attorney General argues that 

Gustino failed to allege that her actions caused his injury. Gustino responds that his 

injury is fairly traceable to the Attorney General because she breached a fiduciary 

duty to protect his constitutional rights from abridgment by section 57.105. 

We agree with the Attorney General. Gustino did not allege that the attorney’s 

fee judgment wasfairly traceable to the Attorney General. His complaint established 

the opposite; the judgment resulted from the state appellate court granting the 

association’s motion for sanctions. Section 57.105 doesn’t “contemplate 

enforcement by the Attorney General,” which “counts heavily against [Gustino’s]

traceability argument.” See Lewis v. Governor of Ala., 944 F.3d 1287, 1299 (11th 

Cir. 2019). Rather, the law allows for sanctions only “[u]pon the court’s initiative 

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or motion of any party,” Fla. Stat. § 57.105(1), and the Attorney General was not a 

party to Gustino’s breach of contract claim against the association. 

As for Gustino’s contention that he established causation because the 

Attorney General has a duty to protect his constitutional rights, this theory “proves 

entirely too much—and thus nothing at all.” See Lewis, 944 F.3d at 1300. If 

Gustino’s argument were correct, the Attorney General could be sued “under 

innumerable provisions of” Florida law simply because a plaintiff claimed in federal 

court that any one of those laws was unconstitutional. See id. As we did in Lewis, 

we reject a theory of traceability which would allow Gustino to sue the Attorney 

General without showing that she actually caused his injury. See id. Finally, 

although Gustino relies on Ex parte Young, 209 U.S. 123 (1908) to establish his 

standing to sue the Attorney General, “Article III standing and the proper defendant 

under Ex parte Young are ‘[s]eparate[]’ issues[.]” Jacobson v. Fla. Sec’y of State, 

957 F.3d 1193, 1210 (11th Cir. 2020) (quoting Lewis, 944 F.3d at 1295). 

Because Gustino failed to plausibly allege that his injuries are fairly traceable 

to the Attorney General, he does not have standing to sue her. Thus, we vacate the 

district court’s judgment as to the Attorney General and remand the case with 

instructions to dismiss Gustino’s claims against her for lack of standing. See

Trichell, 964 F.3d at 1005 (“Because [the plaintiffs] lack Article III standing, we 

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vacate the district courts’ judgments and remand the cases with instructions to 

dismiss for lack of Article III standing.”). 

Dismissal of Gustino’s Section 1983 Claims Against the Association

Gustino argues that the district court erred in concluding that his section 1983 

claims failed because the association was not a state actor. State action exists in 

First Amendment challenges to state law, Gustino argues, even “in litigation 

between private parties[.]” 

A plaintiff raising a section 1983 claim must show the deprivation of “a 

federal right by a person acting under color of state law.” Griffin v. City of OpaLocka, 261 F.3d 1295, 1303 (11th Cir. 2001). For a party to act under color of law, 

its conduct must be “fairly attributable to the state”: the deprivation “must be caused 

by the exercise of some right or privilege created by” the state, and the party must 

be a “state actor.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). 

But the association isn’t a state actor. It’s a private homeowners’ association. 

“Only in rare circumstances can a private party be viewed as a ‘state actor’ for 

section 1983 purposes.” Id. A private party can be held liable as a state actor only 

if: (1) the state “coerced or at least significantly encouraged the action alleged to 

violate the Constitution”; (2) the private party “performed a public function that was 

traditionally the exclusive prerogative of the State”; or (3) the state “had so far 

insinuated itself into a position of interdependence with” the private party “that it 

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was a joint participant in the enterprise[.]” Rayburn ex rel. Rayburn v. Hogue, 241 

F.3d 1341, 1347 (11th Cir. 2001) (quotation omitted). 

Gustino argues that the association was a state actor because it “deploy[ed] 

the judicial power” of Florida state courts to secure and enforce a judgment against 

him “under a facially unconstitutional state statute[.]” But “one who has obtained a 

state court order or judgment is not engaged in state action merely because it used 

the state court legal process.” Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th 

Cir. 1985); see also Harvey, 949 F.2d at 1133 (“Use of the courts by private parties 

does not constitute an act under color of state law”). Thus, the district court did not 

err in finding that the association was not a state actor under section 1983.

Because Gustino did not plausibly allege that the association acted under color 

of state law, we affirm the district court’s order dismissing his section 1983 claims

against it.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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