[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11120

Non-Argument Calendar

____________________

WENDELL DWAYNE O'NEAL, 

Plaintiff-Appellant,

versus

ALLSTATE INDEMNITY INSURANCE COMPANY INC, 

MORRIS BART LLC, 

CLAUDE E. HUNDLEY, III, 

KEITH GANN, 

Attorney, 

ALBERT J. TROUSDALE, II, 

Attorney, et al., 

Defendants-Appellees.

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____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 5:20-cv-00743-LCB

____________________

Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Plaintiff Wendell O’Neal appeals the district court’s order 

holding him in civil contempt. After careful review, we affirm.

BACKGROUND

This is one of several lawsuits filed by Plaintiff that arise out 

of a 2018 automobile accident. Unhappy with the settlement 

agreements from his state-court action concerning the car accident, 

Plaintiff filed this action seeking federal review of those agreements. The district court dismissed the suit for lack of subject-matter jurisdiction and determined that sanctions were necessary because of Plaintiff’s costly, abusive, and vexatious filing conduct.1

 

Further, based on Federal Rule of Civil Procedure (“FRCP”) 11 and 

the court’s inherent powers, the court ordered Plaintiff to pay 

$6,500 in monetary sanctions to the defendants. The court also issued a permanent injunction that prohibits Plaintiff from 

1 Plaintiff has sued over 400 parties in the past two decades, and all but two of 

those suits have been without merit. 

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submitting any court filings without court approval and requires 

him to post a thousand-dollar bond to commence any lawsuit. 

Plaintiff appealed the district court’s order. This Court affirmed the dismissal of Plaintiff’s suit and the Rule 11 sanctions order in full. O’Neal v. Allstate Indem. Ins. Co., Inc., No. 20-14712, 2021 

WL 4852222, at *1 (11th Cir. Oct. 19, 2021). After this Court issued 

its mandate, the district court ordered Plaintiff to pay the monetary 

sanctions within a week and directed Defendants to subsequently 

file status reports stating whether Plaintiff had paid. 

Plaintiff moved for leave to obtain relief from the monetary 

sanctions based on what he characterized as newly discovered evidence that defendant Allstate Indemnity Insurance Co. (“Allstate”) 

had withheld $3,002.86 in insurance proceeds contrary to the settlement agreement in their prior state-court action.2

 Plaintiff 

claimed the evidence would give the district court subject-matter 

jurisdiction over his suit and therefore render the court’s order dismissing the suit for lack of jurisdiction invalid. Disagreeing, the 

district court denied the motion after concluding that nothing 

Plaintiff submitted constituted new evidence nor demonstrated 

that the court had gained subject-matter jurisdiction over the suit. 

Plaintiff attempted to file an interlocutory appeal of that order and 

2 Defense counsel noted at the subsequent show-cause hearing that Allstate 

was legally required to pay that portion of the settlement agreement to a hospital that had placed a lien on the insurance proceeds. 

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the order directing him to pay the monetary sanctions, but the district court held he was not entitled to pursue either appeal. 

After Plaintiff failed to pay the $6,500 by the specified deadline, the court scheduled a hearing to give Plaintiff the opportunity 

to show cause as to why he should not be held in civil contempt. 

The order expressly stated that imprisonment was a possible sanction if Plaintiff was found in civil contempt. Plaintiff was given 

leave to file a response to the order, but enjoined from filing any 

other documents until the hearing. 

The show cause hearing was held the next month, on April 

4, 2022. At the beginning of the hearing, Plaintiff requested appointment of counsel because he believed the hearing was criminal 

in nature. The court denied the request, noting that the hearing 

was for civil contempt.3

 Also, at the hearing, Plaintiff acknowledged his awareness that the order required him to pay $6,500 in 

sanctions and his understanding that it was the purpose of the hearing to determine the reasons why he had not done so. 

In response to the court’s question why he had not paid the 

monetary sanctions ordered by the court, Plaintiff indicated that he 

been granted social security benefits based on disability and that his 

Stafford (student) loan had likewise been conditionally discharged 

3 In its subsequent order, the district court explained that it had followed the 

standards set out by the United States Supreme Court in Turner v. Rogers, 564 

U.S. 431 (2011), in determining that appointment of counsel was not appropriate or required. As noted infra, Plaintiff has not properly challenged on appeal 

the failure to appoint counsel.

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because of this disability determination. According to Plaintiff, his 

status under the two above programs required that he not earn any 

money that would put his income above the poverty level.4

 

As to the amount of his social security disability payment, 

Plaintiff indicated that he thought he received $840 a month, which 

he estimated would add up to $9,100 a year in social security disability payments, but he referred the court to the document from 

the Social Security Administration. That document confirmed that 

Plaintiff would receive $841 a month for the year 2022, which in 

fact would total $10,092 a year. 

Following Plaintiff’s statement suggesting that he had no 

other source of income, the court inquired about a company with 

which Plaintiff was affiliated—Thirteenth Dimension, LLC—that 

Plaintiff had apparently referenced in an earlier affidavit. Plaintiff 

responded that Thirteenth Dimension, LLC dealt in crisis management. According to plaintiff, his work with Thirteenth Dimension 

involved helping clients with insurance claims by doing research 

on Google to provide answers for them and then referring them to 

counsel, if necessary. He indicated that he had one client now, but 

that over the last 12 months he had had four different clients in 

Nevada who were involved in a lawsuit against an insurance company based on an automobile accident. While these people were 

still clients, Plaintiff said he was currently unable to help them because their case was dismissed and is on appeal in the Ninth Circuit. 

4 In 2022, the poverty level for purposes of federal programs was $13,590. See 

HealthCare.gov/glossary/federal poverty..

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Plaintiff further noted that he was also a plaintiff in that case because, as part of a contingency fee arrangement, the other plaintiffs 

had assigned to Plaintiff proceeds of their action based on his referral of the case to a law firm in Las Vegas.5

 Plaintiff stated that the 

clients in the Nevada action had paid him nothing, but he did not 

indicate whether the existing client had paid him anything. 

At this point in the colloquy, Plaintiff expressed concern that 

the court’s line of inquiry about other potential sources of income 

required him to become a witness against himself in violation of 

his Fifth Amendment rights. In elaborating on this concern, he suggested no worries about a criminal prosecution, but instead his 

concern about the impact of his testimony and the proceedings on 

the Department of Education’s conditional decision to discharge

his student loans. He noted that he was being monitored for three 

years by the Department and that if he earned income that put him 

over the poverty level, the Department could cancel this discharge: 

a decision that would cost him $50,000 in terms of his student loan 

debt. Plaintiff reasoned that if he paid $6,500, this figure, when 

added to his disability check each month, would put him over the 

poverty line. In short, Plaintiff seemed to be concerned that the 

Department of Education might well inquire where that money 

came from.

Notwithstanding Plaintiff’s reluctance to talk about Thirteenth Dimension, the district court continued the inquiry, asking 

5 Plaintiff has acknowledged that he is not licensed to practice law. 

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Plaintiff how much he had made with that entity in the last 24 

months. When Plaintiff answered, “Probably nothing,” the court 

pointed him to an earlier affidavit he had filed indicating that his 

employer was Thirteenth Dimension LLC, from whom he made 

$102.45 a week. Plaintiff responded that this affidavit entry meant 

that he had made $102.45 the week that the affidavit was filed, 

which was in February of 2022, not every week. Then, shifting 

again, Plaintiff added that the money didn’t come from a client or 

even apparently from Thirteenth Dimension, whom he had listed 

as his employer, but instead from his mom6 for the help he gave 

her with her husband and his disability. 

The court then asked how much money Plaintiff receives 

from his mother, but Plaintiff was repeatedly evasive, stating that 

he didn’t know and would have to check his records. Finally, in 

response to the court’s question how much his mother had given 

him in the last three months, he estimated she had given him $400 

in the last three months, but said that she had now stopped giving 

him money. He couldn’t say how much she had given him all total 

in the last year, but thought it would be less than $400 every three 

months. Plaintiff also acknowledged that he lived with his mother 

in her home. 

6 The transcript indicates that Plaintiff said that the money came not from a 

client, but from “a” mom, We infer that the court heard him to say “my mom” 

because the court’s next question was how much money Plaintiff gets from 

his mother. 

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The district court next asked Plaintiff what had happened to 

the $75,000 Plaintiff had received as settlement proceeds from the 

underlying state court proceedings. Plaintiff said it was all gone, 

but was vague in explaining exactly where it had gone, stating, “I 

think I gave my mom and quite a few other people money,” before 

ultimately stating that he gave his mother $4,000, but providing no 

figure for the other gifts to unspecified persons that he had allegedly made. 

Plaintiff further estimated that he had spent $5,000 to buy 

office equipment, which he still owns.7 He indicated that in the last 

two years he had spent an unspecified amount to purchase a Chevrolet Camaro, but then traded that car in for a 2020 BMW X3. He 

testified, “I think I paid $15,000 or so as a down payment on the 

BMW.” He estimated that the BMW was currently worth $38,000, 

and an earlier affidavit stated that the loan amount was approximately $33,000.8

In response to the court’s inquiry, Plaintiff also said he 

spends approximately eighty dollars per month on cigarettes and 

$500 every three months on postage. 

7 An expenditure that is seemingly at odds with Plaintiff’s other statements 

that he was unable to earn outside income because of his receipt of Social Security disability funds and the conditional discharge of his student loan. 

8 When the hearing was recommenced after the court had found Plaintiff in 

contempt, Plaintiff indicated that the BMW had “almost 30” miles on it, which 

we infer to mean 30,000 miles. 

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At the conclusion of the hearing, the court found that even 

though Plaintiff had the ability to pay some of the sanctions 

amount ordered, if not all of the sanctions award, in the many 

months since entry of that sanctions order, he had paid “not one 

single dollar.” The court thus held Plaintiff in contempt and directed the Marshal to take Plaintiff into custody. The court informed Plaintiff that he could purge this contempt upon the payment of $500, after which the court would issue a new order concerning future payment requirements. 

Plaintiff responded, “Where am I going to get the $500 

from?” As it turned out, Plaintiff was able to answer his own question, as he quickly found the means to pay the money. Specifically, 

less than an hour and a half later, Plaintiff was returned to the 

courtroom having paid that amount to the Marshal. According to 

the latter, upon being taken into custody, Plaintiff had told the Marshal that he had $400 cash in his car, as well as some credit cards.9

 

Ultimately, Plaintiff elected to pay the entire $500 amount via a 

credit card. Having purged his contempt per the Court’s directive 

to pay immediately $500, Plaintiff was released from custody. 

In a subsequent written order, the district court explained 

that given Plaintiff’s evasive, incomplete, and inconsistent answers 

when discussing his financial means, as well as his body language, 

9 Upon the recommencement of the hearing after having made this payment, 

Plaintiff indicated that a person named Deborah Willard had recently given 

him $500 after he had helped her with her bankruptcy. 

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demeanor, pace, and tone, the court found Plaintiff not to be a 

credible witness. The court noted that:

On multiple occasions, the Court had to ask the same 

question several times because O’Neal would give 

evasive or incomplete answers. Further, O’Neal’s 

tone, pace, demeanor, and body language caused the 

court to find that he was not being entirely truthful. 

As a result, the court did not “believe that O’Neal’s resources were 

as limited as he suggests.” 

Accordingly, the district court indicated that it found, by 

clear and convincing evidence, (1) that the December 4, 2020 Order 

at issue was valid, clear and unambiguous; (2) that Plaintiff failed 

to comply with that order when he failed to pay the sanctions; 

(3) that Plaintiff was given notice and an opportunity to be heard 

as to why he should not be held in contempt; (4) that Plaintiff was 

not a credible witness; and (5) that Plaintiff had the ability to pay 

the sanctions. 

Yet, as the order further stated, even though the court “believes that [Plaintiff] has the ability to pay these sanctions immediately and in full, out of an abundance of caution,” the court permitted him to pay the balance due in installments. Specifically, Plaintiff was required to pay $250 every 60 days until satisfying the 

$6,000 balance. 

Plaintiff timely appealed the district court’s civil contempt 

order. This Court dismissed Plaintiff’s appeal in part and allowed 

it to proceed in part. Specifically, we dismissed the part of the 

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appeal that challenged the validity of the original sanctions and permanent injunction because those issues were decided in Plaintiff’s 

previous appeal. But we held that the appeal may proceed as to the 

district court’s order holding Plaintiff in civil contempt and modifying the monetary sanctions. We now consider that appeal. 

DISCUSSION

I. Waived Issues

Because Plaintiff does not argue in his appellate brief that the 

district court erred by denying his request for counsel at the show 

cause hearing or that it erred by modifying the monetary sanctions, 

Plaintiff has waived any argument about these issues. See Timson 

v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (explaining that issues 

not briefed on appeal by a pro se litigant are abandoned). “A passing 

reference to an issue in a brief is not enough, and the failure to 

make arguments and cite authorities in support of an issue waives 

it.” Robinson v. Sauls, 46 F.4th 1332, 1341 n.6 (11th Cir. 2022) (quoting Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 

(11th Cir. 2012). Nor do we address arguments raised for the first 

time in a pro se litigant’s reply brief. Timson, 518 F.3d at 874.

Regarding a right to counsel, Plaintiff made no arguments 

about this issue in his appellant brief.10 In Plaintiff’s reply brief, he 

10 Although Plaintiff mentions the right to counsel in a few footnotes, the issue 

is nonetheless waived because Plaintiff presented no substantive argument on 

the issue. See Old W. Annuity & Life Ins. Co. v. Apollo Grp., 605 F.3d 856, 860 

n.1 (11th Cir. 2010) (holding an issue waived where the plaintiff mentioned it 

in a footnote but presented no substantive argument).

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mentioned his alleged right to counsel in a heading but he did not 

expand upon the argument. Regarding modification of the monetary sanctions, Plaintiff made a few passing references to this issue. 

However, rather than present any substantive argument on the issue, Plaintiff simply suggested that the district court’s modification 

of the monetary sanctions supports his argument that he could not 

comply with the Rule 11 sanctions order. We therefore address 

neither issue in this appeal. Thus, the only issue left on appeal is 

whether the district court abused its discretion in finding Plaintiff 

in civil contempt.

II. Civil Contempt

A. Standard of Review 

We review a district court’s civil contempt order for abuse 

of discretion. PlayNation Play Sys., Inc. v. Velex Corp., 939 F.3d 1205, 

1210 (11th Cir. 2019) (citing FTC v. Leshin, 618 F.3d 1221, 1231 (11th 

Cir. 2010)). An abuse of discretion occurs when a court makes a 

clear error of judgment, fails to follow the proper legal standard or 

process for making a determination, or relies on clearly erroneous 

findings of fact. Johnston v. Borders, 36 F.4th 1254, 1282 (11th Cir. 

2022). A finding of fact is clearly erroneous “when although there 

is evidence to support it, the reviewing court on the entire evidence

is left with [a] definite and firm conviction that a mistake [was] 

committed.” Caplan v. All Am. Auto Collision, Inc., 36 F.4th 1083, 

1089 (11th Cir. 2022) (quoting Anderson v. City of Bessemer City, 470 

U.S. 564, 573 (1985)). Federal Rule of Civil Procedure 52(a) demands even greater deference to a district court’s findings of fact 

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that are based on determinations about the credibility of witnesses. 

Reiterman v. Abid, 26 F.4th 1226, 1234–35 (11th Cir. 2022). This is 

because “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Id. (quoting Anderson, 

470 U.S. at 575).

B. Analysis

The district court did not abuse its discretion in finding 

Plaintiff in civil contempt. In a civil contempt proceeding, the 

moving party bears the initial burden of proving, by clear and convincing evidence, that the alleged contemnor violated the underlying court order at issue. Thomas v. Blue Cross and Blue Shield Ass’n, 

594 F.3d 814, 821 (11th Cir. 2010) (citing Chairs v. Burgess, 143 F.3d 

1432, 1436 (11th Cir. 1998). 

Once the moving party has made such a showing, the burden of production then shifts to the alleged contemnor to produce 

evidence providing a satisfactory reason for his noncompliance. Id. 

Two common explanations for noncompliance are that the contemnor has not violated the order or that he was unable to comply. 

Chairs, 143 F.3d at 1436. Here, Plaintiff does not argue that he has 

not violated the order. Rather, he argues he should have been excused from complying because he could not pay the monetary 

sanctions ordered by the district court. 

The mere assertion of an inability to comply with an order 

does not satisfy a contemnor’s burden of production to show an 

inability to comply. PlayNation, 939 F.3d at 1212; Chairs, 143 F.3d 

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at 1436. Instead, a contemnor must demonstrate that he has made 

“in good faith all reasonable efforts to comply.” PlayNation, 939 

F.3d at 1213 (internal quotation marks omitted). This requirement 

is construed strictly with an emphasis on the “all reasonable efforts” aspect of the analysis. Commodity Futures Trading Comm’n v. 

Wellington Precious Metals, Inc., 950 F.2d 1525, 1529 (11th Cir. 1992). 

Finally, evasive and incomplete testimony does not satisfy the contemnor’s burden of production. Id. at 1530 (citing United States v. 

Roberts, 858 F.2d 698, 701 (11th Cir. 1988)).

Turning to the current case, we find no error in the district 

court‘s conclusion that the Rule 11 sanctions order was lawful and 

valid. Indeed, we previously affirmed that order in our earlier decision. See O’Neal v. Allstate Indem. Ins. Co., No. 20-14712, 2021 WL 

4852222, at *1 (11th Cir. Oct. 19, 2021). And contrary to Plaintiff’s 

argument about new evidence, the district court reviewed Plaintiff’s over 319-page filing and concluded that none of it constituted 

new evidence nor demonstrated that the court had subject-matter 

jurisdiction over the suit. 

In addition, the district court correctly concluded that the 

Rule 11 sanctions order was clear and unambiguous. Regarding 

the monetary sanctions, the order told Plaintiff the exact amount 

to pay each defendant. After this Court affirmed that order, the 

district court ordered Plaintiff to pay the monetary sanctions by a 

specified deadline. At the show cause hearing, Plaintiff acknowledged that the Rule 11 sanctions order was specific and told him 

the exact amount to pay each Defendant. 

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In short, the district did not err in concluding that a prima 

facie showing of contempt had been established based on Plaintiff’s 

non-compliance with a legal order directing him to pay monetary 

sanctions to those he had injured through his abusive and vexatious 

litigation. Nor do we find clear error in the district court’s finding 

that Plaintiff had failed to shoulder his burden to produce evidence 

that he was unable to comply with the court’s monetary sanction 

order. In so holding, the district court found Plaintiff not to be 

credible when he professed a lack of resources as the reason for his 

non-compliance, as the court found Plaintiff’s responses to be evasive, incomplete, and inconsistent. 

Plaintiff had received approximately $75,000 as a settlement 

for his automobile accident. Yet, he offered only the most vague, 

paltry, and uncorroborated assertions as to where that money had 

gone, justifying an inference that some of that money should be 

available to pay a portion, if not all, of his monetary sanctions. See 

Wellington Precious Metals, Inc., 950 F.2d at 1530 (citing Roberts, 858 

F.2d at 701) (where a contemnor was ordered to disgorge all the 

2.8 million dollars he had received as a result of his fraudulent activities, testimony that he had spent 1.4 million dollars did not adequately explain where the rest of the money had gone).

Further, Plaintiff admitted that he spent approximately $250 

a month on cigarettes and postage, received additional money 

from his mother, and owned a vehicle and office equipment worth 

thousands of dollars. Nevertheless, notwithstanding these admitted resources and even though he was well aware that a due date 

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was looming for his payment of these sanctions, Plaintiff made no 

arrangements to pay even a partial amount of the money he owed. 

Yet, even though the district court believed that Plaintiff had 

the ability to pay the sanctions immediately and in full, it took a 

conservative approach and required that Plaintiff pay only $500 immediately, with the balance to be paid on installments of $250 a 

month. As noted, at a minimum, Plaintiff was already spending at 

least $250 monthly on optional expenses. 

For all the above reasons and based on the entire evidence, 

we are left with no definite and firm conviction that the district 

court made a mistake when it concluded that Plaintiff could comply with its order. As the district court did not abuse its discretion 

in finding Plaintiff in civil contempt, we AFFIRM.

CONCLUSION

For the reasons discussed above, the district court’s order 

holding Plaintiff in civil contempt is AFFIRMED.

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