FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

November 15, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12492

Non-Argument Calendar

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D. C. Docket No. 03-20412-CV-ASG

DANIEL C. GAMO, 

MICHAEL A. MAGGIO, 

Plaintiffs-Appellants, 

versus 

UNITED STATES, 

UNITED STATES CUSTOMS SERVICE, 

TOM ROLAND, 

JEFFREY BALDWIN, 

JERRY LONG, et al., 

Defendants-Appellees. 

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Appeal from the United States District Court

for the Southern District of Florida

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(November 15, 2005)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
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In this civil rights action brought against the United States, the U.S. Customs

Service, and three Customs Service agents pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971), the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et.

seq., 42 U.S.C. §§ 1985, 1986, and 28 U.S.C. § 1367 case, the district court, ruling

on defendants’ alternative motions to dismiss and for summary judgment, granted

defendants summary judgment on Counts I, II, IV, V, VI, VII, and VIII of

plaintiffs’ amended complaint. See Order on Motion to Dismiss Complaint or, in

the alternative, Motion for Summary Judgment, dated February 28, 2005. This

disposed of all of plaintiff Maggio’s claims. As for Count III, plaintiff Gamo’s

claim for assault and battery, the court concluded that that count failed to state a

claim for relief. Id. The court gave Gamo leave to amend Count III by a date

certain so to identify the persons who allegedly committed the assault and battery

and the constitutional rights purportedly infringed. The court’s order stated that

Gamo’s failure to amend Count III would result in a dismissal without further

notice. Id. Gamo failed to amend Count III. The court therefore dismissed the

case with prejudice, entering final judgment for defendants on all claims. See

Order Dismissing Case in its Entirety, dated March 25, 2005. Maggio and Gamo

now appeal.
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Plaintiffs’ amended complaint asserted claims for false arrest and

imprisonment and illegal search of plaintiffs’ persons and seizure of their currency,

in violation of the Fourth Amendment; assault and battery upon plaintiff Gamo;

deprivation of plaintiffs’ property without due process, in violation of the Fifth

Amendment; imposition of excessive fines, in violation of the Eighth Amendment;

conspiracy under 42 U.S.C. § 1985; and “neglect to prevent” unlawful acts under

42 U.S.C. § 1986.

Plaintiffs contend that summary judgment was improper because defendants

did not file a concise statement of material facts, and, although there were disputed

issues of material fact, plaintiffs were not required to point out those disputed facts

because the defendants had not met their burden to show that they were entitled to

summary judgment. Plaintiffs also contend that the district court could not grant

the motion to dismiss because it considered matters outside the pleadings and,

moreover, improperly acted as a fact finder. 

We find no error in the manner in which the court handled the matter. The

court did not improperly convert defendants’ motion to dismiss into a motion for

summary judgment because defendants’ motion explicitly relied on the summary

judgment rule, Fed. R. Civ. P. 56. Even if we were to conclude that the court failed

to comply with Rule 56's requirement that the non-movant be given ten days’
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notice of the court’s intention to take a motion for summary judgment under

advisement, we would find the error harmless because plaintiffs were well aware of

defendants’ reliance on Rule 56, as evidenced by the arguments they made and the

documents they submitted in response to defendants’ motion. 

In this case, the material facts are not in dispute; hence, it was ripe for

summary judgment consideration. The question thus becomes whether the court

erred in granting summary judgment (as well as defendants’ motion to dismiss

Count III). 

The district court dispositive order of February 28, 2005, contains an

accurate statement of plaintiffs’ claims and the applicable law. We discern no

error in the court’s application of that law to plaintiffs’ claims. The court’s

judgment is due to be affirmed.

AFFIRMED.