[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11464

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-02490-LMM

DAVID BOOTH, 

 Plaintiff-Appellant,

versus

CITY OF ROSWELL, 

a Municipal Subdivision of the State of Georgia, 

RUSTY GRANT, 

 Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

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(October 31, 2018)

Before MARCUS, JORDAN and FAY, Circuit Judges.

PER CURIAM: 

David Booth appeals following the grant of the defendants’ motion to 

dismiss his employment discrimination action for failing to state a claim upon 

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which relief could be granted. Before filing this lawsuit, Booth filed a charge of 

discrimination with the Equal Employment Opportunity Commission (“EEOC”), 

which dismissed his charge. In this appeal, Booth argues that the district court 

erred: (1) by not converting the defendants’ motion to dismiss into a motion for 

summary judgment when the defendants attached his EEOC charge to their 

motion; and (2) by determining that he failed to state a claim under the Americans 

With Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and under 42 U.S.C. § 

1983. After careful review, we affirm.

Ordinarily, we review de novo the district court’s grant of a motion to 

dismiss for failure to state a claim. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 

2003). But under our Local Rule 3-1, the failure to object to a magistrate judge’s 

Report and Recommendation (“R&R”) waives the right to challenge on appeal the 

district court’s order based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the consequences on 

appeal for failing to object. 11th Cir. R. 3-1. 

In the absence of a proper objection, however, we may review on appeal for 

plain error if necessary in the interests of justice. Id. To establish plain error, a 

party must show (1) an error, (2) that is plain, and (3) that affected his substantial 

rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the party

satisfies these conditions, we may exercise our discretion to recognize the error 

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only if it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. Id. An argument not mentioned in an appellant’s initial brief is 

deemed abandoned. See Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 

1995). Moreover, “an appellant’s simply stating that an issue exists, without 

further argument or discussion, constitutes abandonment of that issue.” Singh v. 

U.S. Att’y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009).1

“To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). Additionally, a 

district court may consider a document attached to a motion to dismiss, without 

converting it to a motion for summary judgment, when the plaintiff refers to the 

document in his complaint, it is central to his claims, and there is no reasonable 

dispute as to the authenticity of the document. Horsley v. Feldt, 304 F.3d 1125, 

1134 (11th Cir. 2002). 

Before filing suit under the ADA, a plaintiff must exhaust her administrative 

remedies by filing a charge with the EEOC. See 42 U.S.C. § 12117(a) (applying 

remedies and procedures of Title VII to ADA); Wilkerson v. Grinnell Corp., 270 

 1 Notably, Booth has abandoned several arguments on appeal. He has abandoned any challenge 

to the district court’s determination that he failed to state an equal protection claim because he 

does not mention “equal protection” in his brief. Marek, 62 F.3d at 1298 n.2. He also has 

abandoned any challenge to the district court’s failure to sua sponte allow him to amend his brief 

because he raises the issue in an ancillary section of his brief, with no further argument or 

discussion. Singh, 561 F.3d at 1278-79.

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F.3d 1314, 1317 (11th Cir. 2001). The allegations in the judicial complaint must 

be “reasonably related” to the EEOC charge with no “material differences” 

between the two. See Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989). 

“Allegations of new acts of discrimination, offered as the essential basis for the 

requested judicial review, are not appropriate.” Ray v. Freeman, 626 F.2d 439, 

443 (5th Cir. 1980).2 Additionally, to survive a motion to dismiss, an ADA claim 

for disparate treatment must contain more than speculative conclusions and must 

provide enough factual matter, taken as true, to plausibly suggest intentional 

disability discrimination. See Iqbal, 556 U.S. at 678-79.

A claimant is entitled to relief under 42 U.S.C. § 1983 if he can prove that a 

person acting under color of state law deprived him of a federal right. Almand v. 

DeKalb Cnty., Ga., 103 F.3d 1510, 1513 (11th Cir. 1997). However, § 1983 is not 

itself a source of substantive rights, but merely provides “a method for vindicating 

federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 

(1979). The first step in a § 1983 claim is to identify the specific constitutional 

right allegedly infringed. See Graham v. Connor, 490 U.S. 386, 394 (1989).

As the record reveals, Booth failed to object to the magistrate judge’s R&R 

at the district court and now fails to argue for plain error review on appeal. Thus, 

under our local rules, he has waived the right to challenge the district court’s order 

 2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as 

binding precedent all Fifth Circuit decisions issued before October 1, 1981.

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on appeal. 11th Cir. R. 3-1. 

But even reviewing Booth’s arguments for plain error, we can find none. 

First, the district court did not plainly err by dismissing Booth’s amended 

complaint for failure to state a claim. As the record reflects, the district court 

applied the correct standard to the motion to dismiss, assessing whether the 

amended complaint contained sufficient factual matter to state a claim that was 

plausible on its face. Iqbal, 556 U.S. at 678. Nor did district court err in refusing 

to convert the motion to dismiss into a motion for summary judgment when the 

defendants attached his EEOC charge to their motion to dismiss. The record 

makes clear that Booth referred to the EEOC charge in his complaint, as amended;

it was central to whether his claims were viable; and no one disputed its 

authenticity. Horsley, 304 F.3d at 1134.

As for his ADA failure-to-accommodate and hostile-work-environment 

claims, the district court did not plainly err in dismissing them because they were 

not administratively exhausted. Booth’s complaint reveals that his claims stem 

from a motorcycle accident in which he suffered nerve damage and permanent 

partial paralysis of his right hand. The complaint alleged that sometime after the 

accident, he received verbal and written counseling and he was placed on a 90-day 

performance improvement plan because his productivity and “self-initiated 

activity” was lower than other officers in his squad, and shortly thereafter, the City 

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fired him, allegedly because he failed “to perform at an acceptable level of 

competence.” The complaint further alleged that he had submitted a letter from his 

doctor suggesting that courtroom duty would be more suitable for him than patrol 

duty, but the City refused the suggestion or any other accommodations. 

Booth’s EEOC charge, however, only said that he was terminated and that 

he believed he had been discriminated against because of his disability; it did not 

relay what his disability was, nor mention an accommodation request, a failure to 

accommodate, harassment, or a hostile work environment. Further, in listing the 

instances of discrimination he had suffered, his EEOC charge identified only the

verbal counseling, written counseling, and termination, which occurred about six 

months after his alleged request for accommodation. Thus, the complaint’s failureto-accommodate and hostile-work-environment claims describe new acts of 

discrimination, and as a result, the district court did not plainly err in dismissing 

them for lack of exhaustion. Ray, 626 F.2d at 443. 

As for his disparate treatment claim, Booth did not allege that his disabled 

hand had anything to do with any of the incidents for which he was disciplined, nor 

did he allege that any city employee harbored a discriminatory animus against 

people with disabilities. Because Booth did not allege any facts to support his 

allegation that he was “terminated because he was an undesirable employee 

because of his disability,” the district court did not plainly err in dismissing his 

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disparate treatment claim. See Iqbal, 556 U.S. at 678-79.

Finally, the district court did not plainly err in dismissing Count Two of 

Booth’s complaint. As the record reveals, the complaint failed to identify any 

constitutional right that was violated to support a claim under § 1983. See

Graham, 490 U.S. at 394. Accordingly, we affirm. 

AFFIRMED.

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