FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13310

Non-Argument Calendar

________________________

D. C. Docket No. 08-00516-CV-CAP-1

LAYON DEAN JEREMIAH,

Plaintiff-Appellant,

versus

JACK BURNETTE,

BUTCH CONWAY,

RODNEY K. MILES,

BRIAN W. WHITESIDE,

HERBERT ADAMS, JR.,

et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(October 22, 2008)
Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Layon Dean Jeremiah, a state prisoner and Jamaican citizen proceeding pro

se, appeals the district court’s dismissal of his complaint alleging claims under 42

U.S.C. § 1983 and 28 U.S.C. § 1350. Jeremiah alleged that Georgia state officials

violated his rights under Article 36 of the Vienna Convention on Consular

Relations (“VCCR”) when they arrested him in March 1998 because they failed to

inform him of his right to contact Jamaican consular offices regarding his arrest.

He further alleged that he was incarcerated based on an arbitrary and capricious

conviction. The district court dismissed Jeremiah’s complaint sua sponte.

On appeal, Jeremiah argues that: (1) the district court wrongly applied 28

U.S.C. § 1915A in dismissing his complaint; (2) the VCCR confers enforceable

individual rights; (3) his § 1983 claim based on the VCCR is not time barred; and,

(4) the district court erred by not providing him with an opportunity to amend his

complaint before dismissing it. We affirm.

DISCUSSION

We address the procedural issues before turning to the merits of Jeremiah’s

appeal.

2
I.

Jeremiah has not raised any argument on appeal regarding his claim that he

was incarcerated pursuant to an arbitrary and capricious conviction. Consequently,

we deem any argument relating to this claim to be abandoned. See Sepulveda v.

U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).

II.

Jeremiah argues that the district court erroneously dismissed his complaint

because he fully paid the filing fee and is thus not proceeding in forma pauperis.

28 U.S.C. § 1915. Regardless, however, “[t]he [district] court shall review . . . as

soon as practicable after docketing, a complaint in a civil action in which a

prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity.” § 1915A(a). Because Jeremiah is a prisoner suing Georgia

state officers, the district court properly applied § 1915A in dismissing Jeremiah’s

complaint.

III. Jeremiah argues that the district court erred by denying him leave to amend

his complaint. We have held that “[a] district court is not required to grant a

plaintiff leave to amend his complaint sua sponte when the plaintiff, who is

represented by counsel, never filed a motion to amend nor requested leave to

amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314

3
F.3d 541, 542 (2002) (en banc), overruling Bank v. Pitt, 928 F.2d 1108, 1112 (11th

Cir. 1991) (per curiam) (“Where a more carefully drafted complaint might state a

claim, a plaintiff must be given at least one chance to amend the complaint before

the district court dismisses the action with prejudice.”).

We noted that Wagner “decide[d] and intimate[d] nothing about a party

proceeding pro se.” Id. at 542 n.1. Accordingly, Jeremiah argues that Bank

applies here and that the district court erred by not allowing him to amend his

complaint. However, “a district court may properly deny leave to amend . . . when

such amendment would be futile.” Hall v. United Ins. Co. of Am., 367 F.3d 1255,

1263 (11th Cir. 2004). Since we find, for the reasons discussed below, that an

amendment would have been futile, we find no reversible error in the district

court’s denial of leave to amend.

IV.

We now address the merits of Jeremiah’s appeal. We review the district

court’s dismissal of a claim as frivolous for an abuse of discretion. See Bilal v.

Driver, 251 F.3d 1346, 1348-49 (11th Cir. 2001). In reviewing a prisoner’s civil

action, “the court shall identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint . . . is frivolous . . . .” 28 U.S.C. §

1915A(b)(1). “A claim is frivolous if it is without arguable merit either in law or

4
fact.” Bilal, 251 F.3d at 1349. “Pro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore, be liberally

construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(per curiam) (citation omitted).

Jeremiah argues that the district court erred by dismissing his claims as

frivolous because “consular officers shall have the right to visit a national of the

sending State who is in prison, custody or detention, to converse and correspond

with him and to arrange for his legal representation.” Vienna Convention on the

Law of Consular Relations art. 36(1)(c), Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S.

261. Jeremiah argues that, under the VCCR, Georgia state officials had the duty to

inform him of his right to communicate with Jamaican consular officers regarding

his arrest. Jeremiah urges this Court to follow Jogi v. Voges, where the Seventh

Circuit held that Article 36 “grants private rights to . . . aliens from countries that

are parties to the Convention who are in the United States . . . .” 480 F.3d 822, 835

(7th Cir. 2007). The Jogi court found that those rights are “‘presumptively

enforceable by § 1983.’” Id. (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284,

122 S. Ct. 2268, 2276, 153 L. Ed. 2d 309 (2002)).

We have, however, concluded otherwise. See, e.g., Gandara v. Bennett, 528

F.3d 823 (11th Cir. 2008). In rejecting the Jogi court’s reasoning, we noted that

5
“the Vienna Convention does not expressly provide for private damage actions.

Instead, the plain words of the Treaty provide that the notification right shall be

exercised, not that failure to notify should be compensated.” Id. at 828 (citation

and internal quotation marks omitted). To the extent that the VCCR confers legal

rights and obligations, “the right to protect nationals belongs to States party to the

Convention; no private right is unambiguously conferred on individual detainees

such that they may pursue it through § 1983.” Id.

Here, Jeremiah’s § 1983 and § 1350 claims are private damage actions based

on an alleged violation of the VCCR. And his claims are based on rights that we

do not recognize as enforceable. See id. Accordingly, the district court did not err

in dismissing Jeremiah’s complaint as frivolous under 28 U.S.C. § 1915A. Nor did

the court err in denying leave to amend the complaint because an amendment

would have been futile. Because Jeremiah’s claims were properly dismissed as

frivolous, we do not address whether Jeremiah’s § 1983 claim was time barred.

CONCLUSION

After carefully reviewing the record and Jeremiah’s brief, we discern no

reversible error.

AFFIRMED.

6