FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JANUARY 4, 2010

JOHN P. LEY

ACTING CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-11445

Non-Argument Calendar

________________________

D. C. Docket No. 08-22334-CV-CMA

MAMIE A. HORNE,

Plaintiff-Appellant,

versus

SOCIAL SECURITY ADMINISTRATION,

ATTORNEY GENERAL,

Eric Holder, Jr.,

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Michael J. Astrue,

LINDA M. SPRINGER,

Director, OPM,

JOHN SNOW,

Director U.S. Treasury Department,

GEORGE ROMAGNOLI,

Pasco County Community Development , et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 4, 2010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:

Mamie A. Horne, proceeding pro se, appeals from the district court’s order

dismissing her pro se amended complaint, in which she alleged numerous

constitutional claims and tort claims against federal and state defendants. On

appeal, Horne argues that the district court erred in dismissing her amended

complaint. She asserts that the court failed to liberally construe her pro se

pleadings. In addition, she argues that the court erred by failing to allow her

brother, Morris J. Peavey, Jr., to intervene in her action pursuant to Fed.R.Civ.P.

24. Horne also raises claims related to the district court’s dismissal of her original

complaint. Specifically, she argues that the court abused its discretion by:

(1) failing to provide her with additional time to file a response to the defendants’

motions to dismiss her original complaint; and (2) denying her “Motion to Enter a

Document as Material to this Case.” For the reasons set forth below, we affirm.

I.

In August 2008, Horne, an African-American, filed a pro se complaint

naming the following agencies and individuals as defendants: (1) the Social

Security Administration (“SSA”); (2) Michael Mukasey, former U.S. Attorney

General; (3) Jo Anne Barnhart, Commissioner of the SSA; (4) Linda M. Springer,

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Director of the U.S. Office of Personnel Management (“OPM”); (5) John Snow,

Director of the U.S. Treasury Department (“USTD”); (6) George Romagnoli,

Director of the Pasco County Community Development Division (“PCCDD”); and

(7) Scott Black, Mayor of Dade City, Florida. In her complaint, Horne generally

alleged that the defendants had violated her rights to due process and equal

protection. She raised claims regarding the OPM’s and SSA’s decisions to deny

her disability benefits, the Internal Revenue Service’s (“IRS”) decision to place a

lien on her property, and Dade City’s and PCCDD’s reliance on zoning laws to

refuse to assist her in constructing a residential building on her property.

Thereafter, Horne filed a motion for leave to proceed in forma pauperis, which the

district court granted.

Romagnoli, acting on behalf of himself and PCDDD, filed a motion to quash

service of process. Black and Dade City filed a motion to dismiss Horne’s

complaint pursuant to Fed.R.Civ.P. 12(b)(6). Horne filed a motion seeking an

extension of time to file a response to the motions to dismiss her complaint. The

district court never ruled on this motion. In addition, Horne also filed a “Motion to

Enter a Document as Material to this Case.” Horne attached numerous documents

to this motion, including an affidavit by her brother, Peavey.

The magistrate judge entered a report and recommendation, finding that

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Horne’s complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). The

magistrate recommended that the court dismiss Horne’s complaint without

prejudice. After the magistrate entered its report and recommendation, the court

denied Horne’s “Motion to Enter a Document as Material in this Case,” noting that

the magistrate had recommended that Horne’s complaint should be dismissed with

leave to amend. The court subsequently entered an order in which it dismissed

Horne’s complaint without prejudice, and directed her to file an amended

complaint.

In her 120-paragraph amended complaint, Horne named the same defendants

as in her original complaint and asserted three primary claims: (1) the SSA and the

OPM erroneously denied her disability benefits despite the fact that she was a

former employee of the U.S. Department of Justice (“DOJ”) and had sustained a

debilitating back injury in 1986; (2) the USTD, through the IRS, erroneously

delayed its payment of her tax returns and placed a lien on her property; and

(3) Dade City and PCCDD erroneously denied her the right to repair or construct

residential property on her land. While Horne did not clearly state which cause of

action she relied on as to each defendant, she indicated that she was bringing her

action pursuant to 42 U.S.C. § 1983, 5 U.S.C. § 8347(c), 5 U.S.C. § 706, 42 U.S.C.

§ 5301(c), 18 U.S.C. §§ 1001 and 1027, and Bivens v. Six Unknown Named Agents,

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403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Horne appeared to allege that

the OPM and the SSA had acted “maliciously and intentionally” by denying her

disability benefits, and violated the equal protection clause by treating her

differently from other disabled individuals. In addition, the IRS had taken actions

against her and Peavey in a “malicious and intentional” manner. Romagnoli,

PCCDD, Black, and Dade City had effected an unconstitutional taking of her

property and violated her right to equal protection by denying her the opportunity

to construct a residential building on her land. In addition, Romagnoli had misled

her into believing that PCCDD would assist her in constructing a new home on her

land.

The magistrate entered another report and recommendation, finding that

Horne’s amended complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B)

because the complaint (1) was frivolous and malicious; (2) failed to state a claim

upon which relief could be granted; and (3) sought relief against a defendant who

was immune from such relief. The magistrate found that Horne failed to make a

short and plain statement of her grounds for relief, as required by Fed.R.Civ.P.

8(a)(2). The magistrate also found that the SSA, the Attorney General, the

Commissioner of the SSA, the Director of the USTD, and the Director of the OPM

were immune from suit as governmental agencies or individuals sued in their

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official capacities. The magistrate determined that, pursuant to 5 U.S.C. § 8347(c),

decisions by the OPM were “final and conclusive” and not subject to review other

than by the Merit Systems Protection Board (“MSPB”). The magistrate

determined that Horne’s reliance on 5 U.S.C. § 706 and 18 U.S.C. § 1001 was

misplaced, as the former statute did not provide the court with jurisdiction to

review the SSA’s denial of benefits, and the latter was a criminal statute that did

not provide Horne with a private cause of action. As to Horne’s claims against

Romagnoli, PCCDD, Black, and Dade City, the magistrate found that, even

assuming that Horne raised colorable claims against these defendants, venue was

improper under 28 U.S.C. § 1391(b). While the magistrate made factual findings

regarding the residences of Romagnoli, PCCDD, Black, and Dade City for

purposes of § 1391(b), the magistrate did not make any findings regarding the

residences of the federal defendants, and did not discuss the presence of the federal

defendants in its § 1391(b) analysis. 

The district court adopted the magistrate’s report and recommendation over

Horne’s objections. Horne filed a notice of appeal, specifying that she appealed

from the court’s order dismissing her amended complaint.

II.

We review “a district court’s dismissal of an in forma pauperis action as

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frivolous under [28 U.S.C.] § 1915(e)(2)(B)(i) for abuse of discretion.” Mitchell v.

Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002). “For

purposes of a dismissal under § 1915(e)(2)(B)(i), a claim is frivolous if it is

without arguable merit either in law or fact.” Id. (quotation and alteration omitted).

We review de novo, however, a district court’s determination that a defendant is

entitled to sovereign immunity. LeFrere v. Quezada, 582 F.3d 1260, 1263 (11th

Cir. 2009).

We review de novo a district court’s dismissal of a complaint under

§ 1915(e)(2)(B)(ii) for failure to state a claim. Alba v. Montford, 517 F.3d 1249,

1252 (11th Cir.), cert. denied, 129 S.Ct. 632 (2008). When reviewing the district

court’s determination that a plaintiff failed to state a claim under

§ 1915(e)(2)(B)(ii), the standards governing dismissals under Fed.R.Civ.P.

12(b)(6) apply. Id. When reviewing a court’s dismissal of a complaint pursuant to

Rule 12(b)(6), we accept the factual allegations in the complaint as true and

construe them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003). In addition, we liberally construe a pro se litigant’s

pleadings. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Our duty to

liberally construe a pro se litigant’s pleadings, however, “is not the equivalent of a

duty to re-write it for the plaintiff.” Snow v. DirecTV, Inc., 450 F.3d 1314, 1320

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(11th Cir. 2006) (quotation and alteration omitted).

“While a complaint attacked 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 entitlement to relief requires more than labels and conclusions.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007) (quotation

and alteration omitted). “Factual allegations must be enough to raise a right to

relief above the speculative level.” Id. at 555, 127 S.Ct. at 1965. Pursuant to

Fed.R.Civ.P. 8(a)(2), the plaintiff must make a plain statement demonstrating her

right to relief. Id. at 557, 127 S.Ct. at 1966. In addition, a plaintiff must satisfy a

heightened pleading standard when alleging a civil rights violation under Bivens or

§ 1983. See Dalrymple v. Reno, 334 F.3d 991, 993, 996-97 (11th Cir. 2003)

(Bivens action); Epps v. Watson, 492 F.3d 1240, 1242 (11th Cir. 2007) (§ 1983

action). We have explained that:

In such cases, the complaint must allege the relevant facts with some

specificity. More than mere conclusory notice pleading is required. A

complaint will be dismissed as insufficient where the allegations it

contains are vague and conclusory . . . . Unsupported conclusions of

law or of mixed fact and law have long been recognized not to prevent

a Rule 12(b)(6) dismissal. We must also keep in mind the fact that we

generally accord official conduct a presumption of legitimacy.

Id. at 996 (quotations, citations, and alterations omitted).

III.

The United States government may not be sued without its consent, and this

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immunity extends to federal government agencies. Asociacion de Empleados del

Area Canalera (ASEDAC) v. Panama Canal Com’n, 453 F.3d 1309, 1315 (11th

Cir. 2006). “[T]he existence of [the government’s] consent is a prerequisite for

jurisdiction.” Id. The Supreme Court has held, however, that federal officials may

be sued in their individual capacities for violations of an individual’s constitutional

rights. Bivens, 403 U.S. at 397, 91 S.Ct. at 2005. While a plaintiff may bring a

Bivens action against a federal officer in his individual capacity, a plaintiff may not

bring a Bivens action against a federal agency or a federal officer acting in his

official capacity. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71, 122 S.Ct.

515, 521-22, 151 L.Ed.2d 456 (2001) (holding that Bivens is “solely concerned

with deterring the unconstitutional acts of individual officers); F.D.I.C. v. Meyer,

510 U.S. 471, 486, 114 S.Ct. 996, 1005-06, 127 L.Ed.2d 308 (1994) (declining to

permit a damages remedy under Bivens against federal agencies).

The Supreme Court has declined to imply a Bivens remedy for monetary

damages for people improperly denied social security benefits. Schweiker v.

Chilicky, 487 U.S. 412, 425-29, 108 S.Ct. 2460, 2468-71, 101 L.Ed.2d 370 (1998).

In addition, “[t]he Office of Personnel Management . . . determines questions of

disability and dependency in administering the government’s provision of annuities

to retired employees and their dependents.” Lindahl v. Office of Personnel

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Management, 470 U.S. 768, 771, 105 S.Ct. 1620, 1623, 84 L.Ed.2d 674 (1985)

(quotation and alterations omitted). The OPM’s determinations as to these matters

are not subject to review, except by the MSPB. Id.; 5 U.S.C. § 8347(c) and (d).

Judicial review of MSPB decisions is available only to determine whether “there

has been a substantial departure from important procedural rights, a

misconstruction of the governing legislation, or some like error going to the heart

of the administrative determination.” Lindahl, 470 U.S. at 791, 105 S.Ct. at 1633.

(quotation omitted).

Under the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”), the federal

government has waived its immunity regarding negligent or wrongful actions

committed by its employees within the scope of their official duties. 28 U.S.C.

§ 1346(b)(1). Constitutional claims, however, are not cognizable under the FTCA.

See Meyer, 510 U.S. at 477-80, 114 S.Ct. at 1001-02. We have recognized that

there is a “discretionary function exception” to the FTCA’s waiver of immunity.

Nguyen v. United States, 556 F.3d 1244, 1250-51 (11th Cir. 2009). Under this

exception, the government remains shielded from liability if its employee

committed the allegedly tortious act in the exercise of a discretionary function. Id.

In order to determine whether the governmental employee was performing a

discretionary function, a court must consider: (1) “whether the conduct involves an

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element of judgment or choice”; and (2) “whether the judgment or choice is

grounded in considerations of public policy.” Id. at 1251 n.2.

Here, the district court did not err in finding that Horne failed to state a

claim for relief against the federal defendants under 28 U.S.C. § 1915(e)(2)(B)(ii).

To the extent that Horne effectively sought to bring a Bivens action against the

OPM, the SSA, and the USTD as agencies, or against Mukasey, Barnhart,

Springer, and Snow in their official capacities, the action was properly dismissed

because Bivens permits suits only against federal agents in their individual

capacities. Moreover, the Supreme Court has specifically held that a plaintiff may

not bring a Bivens action for money damages against the SSA. To the extent that

Horne sought to bring a Bivens action against Mukasey, Barnhart, Springer, and

Snow in their individual capacities, Horne failed to satisfy the heightened pleading

requirement for a Bivens action because her conclusory allegations failed to

explain how these officials violated her constitutional rights. To the extent that

Horne sought to proceed against the federal defendants under the FTCA, her

claims were properly dismissed because she did not specify any theory of tort

liability or identify any specific tortious acts by the defendants. In addition, Horne

failed to allege facts indicating that she was entitled to judicial review of the

OPM’s denial of her claim for disability benefits because she did not allege that the

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MSPB affirmed the OPM’s decision in a proceeding that violated her substantial

procedural rights or involved a misconstruction of governing legislation. The

additional statutes that Horne cited in her complaint did not demonstrate that she

was entitled to relief.

Accordingly, the district court did not err in finding that her claims against

the federal defendants were subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(i)

and (iii). For these same reasons, the court did not abuse its discretion in finding

that her complaint was frivolous under § 1915(e)(2)(B)(ii).

IV.

While the district court dismissed Horne’s claims against the state

defendants for improper venue under 28 U.S.C. § 1391(b), the court failed to

discuss the impact of the federal defendants on its § 1391(b) analysis or make

factual findings regarding the residences of the federal defendants. Because it is

unclear how the federal defendants affected venue in this case, it is unclear whether

the district court properly dismissed Horne’s claims against the state defendants for

lack of venue under § 1391(b). Nevertheless, even if the district court erred in its

venue analysis, we may affirm the court’s dismissal of Horne’s claims against the

state defendants on alternative grounds. See Koziara v. City of Casselberry, 392

F.3d 1302, 1306 n.2 (11th Cir. 2004).

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“In order to prevail on an action under § 1983, a plaintiff must show that he

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). Municipalities and

other local government entities are “persons” within the scope of § 1983, and are

thus subject to § 1983 liability. Monell v. Department of Social Services of City of

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

Where an officer is sued under § 1983 in his official capacity, the suit is actually a

proceeding against the municipality the officer represents. Abusaid v.

Hillsborough County Bd. of County Com’rs, 405 F.3d 1298, 1302 n.3 (11th Cir.

2005). In order “to impose § 1983 liability on a municipality, a plaintiff must

show: (1) that his constitutional rights were violated; (2) that the municipality had

a custom or policy that constituted deliberate indifference to that constitutional

right; and (3) that the policy or custom caused the violation.” McDowell v. Brown,

392 F.3d 1283, 1289 (11th Cir. 2004).

“The State of Florida and its subsidiaries-including municipalities-are

generally immune from tort liability.” Lewis v. City of St. Petersburg, 260 F.3d

1260, 1262 (11th Cir. 2001). Florida has waived its immunity from tort liability

under circumstances where the state agency, if a private person, would be liable in

tort. Id. Under Florida law, the elements of fraud are:

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(1) a false statement concerning a specific material fact; (2) the

maker’s knowledge that the representation is false; (3) an intention

that the representation induces another’s reliance; and (4) consequent

injury by the other party acting in reliance on the representation.

Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d Dist Ct. App.

2002).

In Baytree of Inverrary Realty Partners v. City of Lauderhill, we affirmed a

district court’s dismissal of a plaintiff’s claim that the city effected an unlawful

taking of its property by refusing to amend its zoning laws so that the plaintiff

could use its property for residential construction. 873 F.2d 1407, 1410 (11th Cir.

1989). We noted that the plaintiff had merely been barred from building

residential property on the land, and had not been barred from developing the

property in another manner. Id. at 1410. We explained that, “Neither deprivation

of the most beneficial use of land, nor a severe decrease in the value of property,

measures up to an unlawful taking.” Id. (quotation omitted).

To the extent that Horne intended to bring § 1983 claims against Dade City

and PCCDD as agencies, or against Romagnoli and Black in their official

capacities, her claims were properly dismissed because she did not allege that the

municipality employed a custom or policy that caused her constitutional rights to

be violated. In addition, she failed to allege specific facts indicating that

Romagnoli individually took any action that violated a constitutional right, and

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failed to allege that Black individually took any actions at all. Thus, Horne’s

conclusory allegations were insufficient to state a § 1983 claim against Romagnoli

or Black. To the extent that she intended to raise a fraud claim against Romagnoli,

PCCDD, and Dade city, she did not identify any specific material

misrepresentations that these defendants made, and did not allege that these

defendants made any such misrepresentation with the intent that she rely on it.

Accordingly, Horne failed to allege a plausible tort claim against Romagnoli,

PCCDD, and Dade City. To the extent that Horne alleged that the state defendants

effected an unlawful taking of her property, Horne alleged only that the city would

not permit her to use her property for residential purposes, not that the city

prevented her from developing her property in any manner. Thus, under our

controlling case law, she failed to allege an unlawful taking as a matter of law.

For the foregoing reasons, Horne’s complaint would properly have been

dismissed as to the state defendants for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii).

V.

 We note that Horne did not specify the district court’s order dismissing her

original complaint in her notice of appeal. Under Fed.R.App.P. 3(c)(1), an

appellant must, in her notice of appeal, specify the judgment or order being

15
appealed from. Fed.R.App.P. (3)(c)(1)(B). However, we have recognized that “an

appeal is not lost if a mistake is made in designating the judgment appealed from

where it is clear that the overriding intent was effectively to appeal” a judgment not

specified in the notice of appeal. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th

Cir. 1986). Furthermore, as noted above, this Court liberally construes the

pleadings of pro se litigants. Powell, 914 F.2d at 1463. Accordingly, we discuss

Horne’s claims related to the dismissal of her original complaint below.

“District courts enjoy broad discretion in deciding how best to manage the

cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366-67

(11th Cir. 1997). However, “when a litigant’s rights are materially prejudiced by

the district court’s mismanagement of a case, we must redress the abuse of

discretion.” Id. at 1367. In civil cases, we generally do not consider arguments

raised for the first time on appeal. Ledford v. Peeples, 568 F.3d 1258, 1298 (11th

Cir. 2009).

The district court did not abuse its discretion by: (1) failing to provide Horne

with additional time to respond to the defendants’ motions to dismiss her original

complaint; or (2) denying Horne’s “Motion to Enter a Document as Material to this

Case.” Even assuming that the court erred in taking these actions, Horne was not

prejudiced because the court expressly provided her with an opportunity to amend

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her complaint. Moreover, neither Horne nor Peavey sought permission from the

district court for Peavey to intervene in Horne’s action. Accordingly, Horne seeks

to raise this argument for the first time on appeal, and we will not consider it.

Conclusion

Accordingly, based upon our review of the record and the parties’ briefs on

appeal, we affirm.

AFFIRMED.

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