FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 2, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-13843

Non-Argument Calendar

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D. C. Docket No. 07-00138-CV-3-MHT-TFM

ALONZO AUSTIN, Executor for 

the estate of Ruth H. Lewis, 

Plaintiff-Appellant, 

versus 

MODERN WOODMAN OF AMERICA, 

ALFONZA MENEFEE, Probate Judge, in his 

individual and official capacities, 

et al., 

Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(May 2, 2008)

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
 The several motions by several appellees to adopt other appellee briefs are granted. 1

2

Alonzo Austin, an individual proceeding pro se on behalf of his cousin’s

estate, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint

against various defendants. As executor of his cousin’s estate, Austin asserts that 1

various individuals and entities–among them, an Alabama probate court judge,

several attorneys, the state medical licensing board, and several banks–violated his

cousin’s Fourteenth Amendment rights in connection with her guardianship and

housing and, ultimately, the distribution of her property upon her death in 1994. 

On appeal, Austin argues that the district court erred by not construing the

defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) as motions for summary judgment pursuant to Rule 56(e). He asserts this

error caused him harm because had the district court decided the case under the

summary judgment standard, two of the defendants, Judges Menefee and Bryan,

would have been required to “prove absolute or qualified immunity.” Austin also

finds error in the district court’s failure to consider his motion for summary

judgment; he asserts that the court should have taken his allegations as true and

that there was a disputed genuine issue of material fact at the Rule 12(b)(6) stage. 

Additionally, on appeal, Austin appears to argue the merits of the underlying

probate proceedings out of which this § 1983 action arose.
3

We review de novo an order granting motions to dismiss. Wagner v. First

Horizon Pharmaceutical Corp., 464 F.3d 1273, 1276-77 (11th Cir. 2006). In

reviewing a district court’s grant of a motion to dismiss, the allegations in the

complaint “must be taken as true and read in the light most favorable to the

plaintiffs.” Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). 

“A court is generally limited to reviewing what is within the four corners of

the complaint on a motion to dismiss.” Bickley v. Caremark RX, Inc., 461 F.3d

1325, 1329 n.7 (11th Cir. 2006). Under Federal Rule of Civil Procedure 12(d),

“[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d) (2008). “Whenever a

judge considers matters outside the pleadings in a 12(b)(6) motion, that motion is

thereby converted into a Rule 56 Summary Judgment motion.” Trustmark Ins. Co.

v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002).

After careful review, we discern no reversible error. Although the parties’

motions had affidavits, the record demonstrates that the district court did not

consider matters outside the pleadings. The magistrate’s report and

recommendation, which was adopted by the district court, only considered the

“face of Austin’s complaint” when issuing its recommendation. The district court
 We observe that the district court dismissed Appellant’s complaint on grounds of, inter 2

alia, absolute judicial immunity, state sovereign immunity, and for want of a state actor. 

Appellant has not challenged the substance of this ruling. Issues not raised on appeal are

deemed waived. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.

1989). Even were we able to construe Appellant’s brief to present such a challenge, we find no

reversible error.

 Two of the defendants, Regions Bank and Wachovia Bank, move this Court for 3

sanctions pursuant to Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1912. The motion

is denied. There is no indication in the record that Appellant’s inartful complaint (and appeal)

was made for purposes of harassment or delay. Nor is there any indication that Appellant has

been litigious, or has filed multiple frivolous actions.

4

therefore did not err when it failed to treat the defendants’ motions to dismiss as

motions for summary judgment. See Bickley, 461 F.3d at 1329 n.7;

Trustmark Ins. Co., 299 F.3d at 1267. Because this is the only issue raised on

appeal, and Austin has abandoned all other issues, the district court’s order 2

dismissing Austin’s claims against the defendants is

AFFIRMED.3