[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 14133 Non

- Argument Calendar

________________________ D.C. Docket No. 9:18

- cv - 80346

- BB

KAREN C. YEH HO, Plaintiff

- Appellant,

v ersus ADAM SABOCIK, WILLIAM BOYES, Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (May 24, 2019) Before MARTIN , ROSENBAUM, and NEWSOM , Circ uit Judges. PER CURIAM:

Case: 18-14133 Date Filed: 05/24/2019 Page: 1 of 92 Invoking the district court’s federal

- question jurisdiction, see 28 U.S.C. § 1331, Karen Yeh Ho , proceeding pro se , filed a federal lawsuit against two private attorneys, Adam Sabocik and William Boyes , alleging violations of the Fifth and Fourteenth Amendments to the Constitution, 42 U.S.C. § 1983, 18 U.S.C. § 1509, and state law . Yeh Ho’s claims appear to stem from probate, guardianship, and trust proceedings in Palm Beach County, Florida , involving Ye h Ho’s mother and her
estate . Sabocik and Boyes represented Yeh Ho’s brother in these proceedings , and Yeh Ho believes that they acted improperly and unlawfully, by allegedly having her jailed and depriving her of her inheritance. The district court dismissed Yeh Ho’s lawsuit , concluding that it was clear from the face of her complaint

— despite her allegations of harm to constitutional and federal statutory rights

— that she h ad not alleged a federal claim. Accordingly, the court concluded that it lacked subject

- matter jurisdiction. Yeh Ho now appeals. We first address our jurisdiction to hear this appeal. Sabocik and Boyes move to dismiss Yeh Ho’s appeal as untimely on the ground that her notice of appeal was filed more than 30 days after entry of the dismissal order

. Our appellate jurisdiction in a civil case depends on the timely filing of a notice of appeal. Green v. Drug Enforcement Admin. , 606 F.3d 1296, 1300 (11th Cir. 2010). Ordinarily, the notice of appeal must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). For purposes

Case: 18-14133 Date Filed: 05/24/2019 Page: 2 of 93 of this rule, “entry ” of a dispositive judgment or order occurs either on the date it is set forth in a separate document under Rule 58, Fed. R. Civ. P., or 150 days from the date the order was entered on the docket. See Fed. R. App. P. 4(a)(7)(A)(i)

– (ii). 1 Here, the district court did not enter judgment in a separate document, so Yeh Ho had a total of 180 days from the date of the dismissal order in which to file her notice of appeal. Because her notice of appeal was filed within this period, we have jurisdiction over her appeal. Turning to the district court’s subject

- matter jurisdiction, “[f] ederal courts have limited subject matter jurisdiction, or in other words, they have the power to decide only certain types of cases .” Morrison v. Allstate Indem. Co. , 228 F.3d 1255, 1260

– 61 (11th Cir. 2000). Amon g other limitations, “ lower federal courts are empowered to hear only cases for which there has been a congressional grant of jurisdiction, and once a court determines that there has been no grant that covers a particular case, the court ’ s sole remaining a ct is to dismiss the case for lack of jurisdiction. ” Id. at 1261. “S ubject matter jurisdiction is a question of law that we review de novo. ” Sec. & Exch. Comm’n v. Mutual Benefits Corp. , 408 F.3d 737, 741 (11th Cir. 2005).

1 Different rules apply when a “separate document” is not required under Rule 58. See Fed. R. App. P. 4(a)(7)(A)(i). Here, though, a separate document was required. See Fed. R. Civ. P. 58(a). Case: 18-14133 Date Filed: 05/24/2019 Page: 3 of 94 In this case, Yeh Ho invoked the federal court’s subject

- matter jurisdiction under 28 U.S.C. § 1331, the federal

- question jurisdiction statute. 2 The threshold question under this statute is w hether the matter in co ntroversy “ ar i s [es ] under the Constitution, laws, or treaties of the United States. ” 28 U.S.C. § 1331; Bell v. Hood , 327 U.S. 678, 681

– 82 (1946)

.

“ Even if a complaint alleges injury to federal rights, ” however, “ the courts should not entertain the lawsuit ‘ where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and fri volous. ’ ” Fountain v. Metro. Atlanta Rapid Trans. Auth. , 678 F.2d 1038, 1042 (11th Cir. 1982) (quoting Bell , 327 U.S. at 682

– 83). This exception app lies only when the federal claim is “so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env ’ t , 523 U.S. 83, 89 (1998)

. Where this narrow exception applies, dismissal for lack of subject

- matter jurisdiction is proper. Yeh Ho alleged injury to federal rights under the Fifth and Fourteenth Amendments, 18 U.S.C. § 1509 , and 42 U.S.C. § 1983

. As relevant here, the Fifth and Fourteenth Amendments forbid the federal and state governments from

2 It does not appear that the parties are diverse, so diversi ty jurisdiction under 28 U.S.C. § 1332 would not apply

.

Case: 18-14133 Date Filed: 05/24/2019 Page: 4 of 95 depriving any person of life, liberty, or property “without due process of law.” U.S. Const. amend s . V & XIV. Section 1509 of Title 18 makes it a crime to obstruct, impede, or interfere with

“ the due exercise of rights or the performance of duties under any order, judgment, or decree of a court of the United States .” 18 U.S.C. § 1509. The statute further provides that “[n]o injunctive or other civil re lief against the conduct made criminal by this section shall be denied on the ground that such conduct is a crime.” Id

. Section 1983 , in turn, allows claims against any person who, acting under color of state law, deprives another of a constitutional or federal statutory right. 42 U.S.C. § 1983. But “ o ne cannot go into court and claim a ‘violation of § 1983’

— for § 1983 by itself does not prote ct anyone against anything.” Gonzaga Univ. v. Doe , 536 U.S. 273, 285 (2002) (quotation marks omitted). Rather, “ § 1983 merely provides a mechanism for enforcing individual rights ‘ secured ’ elsewhere .” Id. To establish a § 1983 claim, the plaintiff mus t show that the conduct complained of (1) was committed by a “state actor” and (2) “deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Harvey v. Harvey , 949 F.2d 1127, 1130 (11th Cir. 1992).

“ O nly in rare circumstances can a private party be viewed as a ‘state actor’ for section 1983 purposes.” Id

. To be considered a state actor for purposes of § 1983, a private party must have exercised a traditional ly exclusive public function, acted

Case: 18-14133 Date Filed: 05/24/2019 Page: 5 of 96 in concert with public officials, or engaged in conduct compelled by the state. See id. at 11 30

– 31; see Bendiburg v. Dempsey , 909 F.2d 463, 468 (11th Cir. 1990). Here, the district court properly concluded that it lacked subject

- matter jurisdiction over Yeh Ho’s complaint

. Yeh Ho’s claims against the defendants arise from their actions while representing her brother as private attorneys in state

- court proceedings concerning guardianship and probate matters

. Despite Yeh Ho’s allegations of harm to federal rights, nothing in the complaint indicates that the matter in controversy “aris[es] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331

. Specifically, a lthough Yeh Ho’s con stitutional due

- process rights are enforceable through § 1983, the complaint gives no basis to conclude that Sabocik and Boyes could be considered “state actors” for purposes of § 1983. See Harvey , 949 F.2d at 1130 . The fact that the defendants engaged in the state

- court process and obtained court orders is in sufficient to make them state actors. See Cobb v. Georgia P ower Co. , 757 F.2d 1248, 1251 (11th Cir. 1985) ( “[O]ne who has obtained a state court order or jud gment is not engaged in state action merely because [he] used the state court legal process.” ). Thus, neither § 1983 nor the Fifth and Fourteenth Amendments apply to the factual allegations in Yeh Ho’s complaint. Yeh Ho’s other claims fare no better. S he did not allege or identif y any “ order, judgment, or decree of a court of the United States ,” 18 U.S.C. § 1509, as opposed

Case: 18-14133 Date Filed: 05/24/2019 Page: 6 of 97 to a state

- court order or decree, with which the d efendants allegedly interfered or obstructed

. And her claim of “professional malpractice” is a matter of state law and does not present a federal claim. Thus, despite Yeh Ho’s assertion of harm to federal constitutional and statutory rights, the complaint is clear on its face that this case does not “involve a feder al controversy.” Steel Co. , 523 U.S. at 89

. Nor did the district court err in dismissing Yeh Ho’s complaint without granting leave to amend. While a pro se plaintiff ordinarily must be given at least

on e chance to amend her complaint before dismissal, Bank v. Pitt , 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp. , 314 F.3d 541, 542 (11th Cir. 2002) ( en banc ) (holding that this rule does not apply to counse led litigants who never requested leave to amend), the district court need not grant leave to amend where amendment would be futile , Corsello v. Lincare, Inc. , 428 F.3d 1008, 1014 (11th Cir. 2005). G ranting leave to amend would have been futile in this c ase because it does not appear that any amendment could have cure d the deficiencies identified above. Yeh Ho invokes on appeal additional federal statutes that she believes apply to her

case

— including 42 U.S.C. § 3605, 18 U.S.C. § 242, 18 U.S.C. § 1503, and 18 U.S.C. § 1964

— but any claims under these statutes either suffer from the same defects identified above or are completely unsupported by the factual allegations in her complaint. We see no basis in the record or in Yeh Ho’s briefing to concl ude

Case: 18-14133 Date Filed: 05/24/2019 Page: 7 of 98 that Yeh Ho, if granted leave to amend , could present any colorable claim under these additional statutes. Finally, we consider Sabocik and Boyes ’s motion for attorney’s fees and costs under Rule 38, Fed. R. App. P. 3 “ Rule 38 sanctions are appropria tely imposed against appellants who raise clearly frivolous claims in the face of established law and clear facts.” Parker v. Am. Traffic Solutions, Inc. , 835 F.3d 1363, 1371 (11th Cir. 2016) (quotation marks omitted)

. Absent special circumstances , we ordinarily decline to impose Rule 38 sanctions on pro se appellants

. See , e.g. , Woods v. Internal Revenue Serv. , 3 F.3d 403, 404 (11th Cir. 1993) (“ There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel. However, since this suit was filed pro se , we conclude that sanctions would be inappropriate. ”) We DENY the motion for sanctions. The defendants contend that sanctions are warranted for the following two reasons: (1) the appeal is “clearly untimely”; and (2) Yeh Ho’s allegations of violations of federal constitutional and statutory rights are “comp letely baseless.” Neither reason warrants sanctions in this case. As to the first reason, we disagree that the appeal is untimely, for the reasons we have already explained . As to the second reason, given Yeh Ho’s pro se status,

3 “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Fed. R. App. P. 38.

Case: 18-14133 Date Filed: 05/24/2019 Page: 8 of 99 sanctions are not warra nted even if we agreed with the defendants that the appeal is frivolous. See Woods , 3 F.3d at 404. The appeal turned on largely technical matters of federal jurisdiction , and Yeh Ho’s arguments, even if they were not strong, were not so clearly frivolous or baseless as to justify imposing sanctions against a pro se litigant. Nor do we pass judgment on the merits of Yeh Ho’s allegations more broadly , such as whether she may have viable state

- law claims against the defendants

. We simply hold that her complaint does not present a federal controversy over which the federal courts have subject

- matter jurisdiction. In that regard, we note that the district court purported to enter dismissal “with prejudice,” but a dismissal for la ck of subject

- matter jurisdiction is “entered without prejudice. ” Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc. , 524 F.3d 1229, 1232 (11th Cir. 2008). We therefore remand for the court to reenter its judgment as a dismissal withou t prejudice. AFFIRMED in part; REMANDED in part

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