[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12479

Non-Argument Calendar

________________________

D.C. Docket No. 0:16-cv-62449-WPD

JIMMY JEAN-BAPTISTE NOEL, 

 Plaintiff-Appellant,

versus

BENJAMIN C. LEDBETTER, 

Ft. Lauderdale Police Officer, 

JONATHAN MILLER, 

Ft. Lauderdale Police Officer, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 17, 2018)

Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.

PER CURIAM: 

Case: 17-12479 Date Filed: 05/17/2018 Page: 1 of 6 
2

Jimmy Jean-Baptiste Noel, a state prisoner, appeals pro se the sua sponte 

dismissal of his complaint against Officers Benjamin C. Ledbetter and Jonathan 

Miller of the Fort Lauderdale Police Department and Jimy Jean-Baptiste. 42 U.S.C. 

§ 1983. The district court dismissed Noel’s complaint for failure to state a claim, 

28 U.S.C. § 1915(e)(2)(B)(ii), and denied Noel’s motion for leave to amend his 

complaint as futile. We affirm.

Noel complained that Jean-Baptiste and Officers Ledbetter and Miller had 

“violated his right under the Constitution . . . and laws of the United States.” Noel 

alleged that the officers failed to investigate Jean-Baptiste’s offenses and colluded 

with Jean-Baptiste to falsely incriminate Noel. Noel alleged that Jean-Baptiste, 

who was under the influence of drugs and alcohol, attempted to assault Noel with a 

handgun outside a liquor store, shot at Noel and at Noel’s white Chevrolet Lumina 

several times, fled the scene in his BMW vehicle and, while being pursued by 

Noel, struck a red Pontiac vehicle. Noel attached to his complaint Ledbetter’s 

police report, witness statements, Jean-Baptiste’s affidavit, and Miller’s police 

report, all of which blamed Noel for the misdeeds.

Ledbetter reported that, while he was en route to investigate a white 

Chevrolet Lumina that had crashed and been abandoned, dispatch rerouted him to 

Sunrise Boulevard where Jean-Baptiste and a witness stated that the Lumina had

struck Jean-Baptiste’s BMW and sped away. Jean-Baptiste stated that Noel’s 

Case: 17-12479 Date Filed: 05/17/2018 Page: 2 of 6 
3

Lumina almost backed into the BMW outside a liquor store; that Noel was 

intoxicated, threatened to take the BMW, and slapped Jean-Baptiste; that Noel 

pursued Jean-Baptiste when he sped away after hearing gunshots; that Noel struck 

the BMW, which caused it to crash; and that Noel hit a red Pontiac as he fled from 

the scene. Ledbetter also reported that Jean-Baptiste had a handgun in his BMW, 

which he had a permit to carry, and that officers seized the gun and observed that it

did not appear to have been fired. And Ledbetter reported that, while he was at the 

scene, Noel called the dispatcher several times to state that he was the victim of the 

accident and to arrange to meet officers in different locations where he never

appeared.

Noel moved unsuccessfully for leave to file an amended complaint. Noel 

complained that Jean-Baptiste and the officers had violated his rights “[t]o petition 

the government for a redress of grievances under the First Amendment”; to avoid

“unreasonable search and seizures under the Fourth Amendment”; “to be twice put 

in jeopardy[,] . . . [to be] compelled . . . to be a witness against himself[,] . . . [and

to] be deprived of . . . due process of law under the Fifth Amendment”; “to be 

informed of . . . the case . . . [and] confronted with the wit[]nesses against him[,] to 

have compulsory process for obtaining wit[]nesses . . . and to have assistance of 

counsel for his defen[s]e under the Sixth Amendment”; to be free from “cruel and 

unusual punishment under the Eighth Amendment”; and to enjoy “[t]he equal 

Case: 17-12479 Date Filed: 05/17/2018 Page: 3 of 6 
4

protection of the law under the Fourteenth Amendment[.]” Noel provided 

additional details about his encounter with Jean-Baptiste, and Noel blamed JeanBaptiste for calling dispatch during Ledbetter’s investigation. Noel also alleged

that he had retained an attorney who learned that Jean-Baptiste’s BMW was 

registered to law enforcement and who told Noel that “the State Attorney Office 

would not be filing criminal charges against [him] or . . . arrest[] [him] for this 

incident.”

We apply two standards of review in this appeal. We review de novo the sua 

sponte dismissal of a complaint for failure to state a claim. Evans v. Georgia Reg’l 

Hosp., 850 F.3d 1248, 1253 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017). We 

review the denial of leave to amend a complaint for abuse of discretion, but “we 

exercise de novo review as to the underlying legal conclusion that an amendment 

to the complaint would be futile.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 

600 F.3d 1334, 1336 (11th Cir. 2010).

The district court did not err by dismissing Noel’s complaint. “A successful 

section 1983 action requires that the plaintiff show he was deprived of a federal

right by a person acting under color of state law.” Myers v. Bowman, 713 F.3d 

1319, 1329 (11th Cir. 2013) (alteration adopted) (quoting Almand v. DeKalb Cnty., 

Ga., 103 F.3d 1510, 1513 (11th Cir. 1997)). Noel failed to allege facts that

plausibly suggested that Jean-Baptiste was employed by or had authority to act on 

Case: 17-12479 Date Filed: 05/17/2018 Page: 4 of 6 
5

behalf of the state. See id. at 1329–30. Noel’s conclusory allegation that JeanBaptiste had an “affiliation with [the] Fort Lauderdale police department” did not 

establish that Jean-Baptiste was a state actor. See Harvey v. Harvey, 949 F.2d 

1127, 1133 (11th Cir.1992). Noel also failed to state a claim that his constitutional 

rights were violated by Jean-Baptiste, Ledbetter, or Miller because Noel failed to 

“identify [any] specific constitutional right [Jean-Baptiste or the officers] allegedly 

infringed.” See Albright v. Oliver, 510 U.S. 266, 271 (1994). The district court read

Noel’s complaint liberally to also allege a claim for malicious prosecution against 

the officers, but that claim failed on its merits because, as Noel admitted, criminal 

charges were never filed against him. See Black v. Wigington, 811 F.3d 1259, 1266 

(11th Cir. 2016).

The district court also did not err by denying Noel’s motion to amend. 

“Leave to amend a complaint is futile when the complaint as amended would still 

be properly dismissed[.]” Evans, 850 F.3d at 1254 (quoting Cockrell v. Sparks, 510 

F.3d 1307, 1310 (11th Cir. 2007)). Noel’s proposed amended complaint alleged 

that Jean-Baptiste and the officers violated several of his constitutional rights, but 

Noel failed to identify which defendant violated which right or to explain how the 

facts he alleged established a violation of any particular constitutional right. Noel’s 

disagreement with the police reports and his speculation that the officers sided with 

Jean-Baptiste because his car was registered to law enforcement does not establish 

Case: 17-12479 Date Filed: 05/17/2018 Page: 5 of 6 
6

that the officers infringed on a right guaranteed to Noel under the Constitution. See 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be 

enough to raise a right to relief above the speculative level[.]”). And even if JeanBaptiste’s car was registered to a law enforcement agency, that fact, without more, 

did not establish that he was a state actor instead of a purely private actor. See 

Myers, 713 F.3d at 1330. Noel argues, for the first time on appeal, that JeanBaptiste is an undercover police officer, but we will not consider an argument that 

Noel did not raise in the district court. See Access Now, Inc. v. Sw. Airlines Co., 

385 F.3d 1324, 1331 (11th Cir. 2004).

We AFFIRM the dismissal of Noel’s complaint.

Case: 17-12479 Date Filed: 05/17/2018 Page: 6 of 6