Case: 14-11227    Date Filed: 08/26/2014   Page: 1 of 6


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-11227
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 3:13-cv-00398-TJC-JRK

DERK L. ALLABEN,

                                                               Plaintiff-Appellant,

                                      versus

ELIZABETH H. HOWANITZ,
FREDERICK R. BROCK,
KRISTINA MILLER,

                                                            Defendants-Appellees.

                          ________________________

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

                                (August 26, 2014)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Derk Allaben, a state prisoner proceeding pro se, appeals following the

district court’s dismissal of his 42 U.S.C. § 1983 suit against Elizabeth Howanitz,
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Frederick Brock, and Kristina Miller (the “Defendants”), which alleged that they

conspired with two state court judges to deny him his due process rights. On

appeal, Allaben argues that: (1) that the district court erred in dismissing his

complaint because it improperly considered matters outside of the pleadings, and

he sufficiently alleged a conspiracy between the Defendants and the judges; and

(2) his post-judgment motion for reconsideration did not attempt to relitigate

matters previously before the court, and supported the allegations in his complaint

and demonstrated error in the court’s findings. After thorough review, we affirm.

      We review de novo a grant of a Fed.R.Civ.P. 12(b)(6) motion to dismiss for

failure to state a claim, accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff. Glover v. Liggett Grp.,

Inc., 

, 1308 (11th Cir. 2006). Generally, the scope of review on a

motion to dismiss is limited to the four corners of the complaint. St. George v.

Pinellas Cnty., 

, 1337 (11th Cir. 2002). We review a district court’s

denial of a motion for reconsideration abuse of discretion. Arthur v. King, 

, 1343 (11th Cir. 2007).

      First, we are unpersuaded by Allaben’s claim that the district court erred in

dismissing his complaint. A complaint must contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

Although the complaint does not need detailed factual allegations, it must provide


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the grounds for relief, which “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v.

Twombly, 

, 555 (2007). “Factual allegations must be enough to raise

a right to relief above the speculative level.” 

to state a claim, the

plaintiff must allege enough facts to make the claim “plausible on its face.” 

A complaint does not “suffice if it tenders naked assertion[s] devoid of

further factual enhancement.”     Ashcroft v. Iqbal, 

, 678 (2009)

(quotations omitted). “In the case of a pro se action . . . the court should construe

the complaint more liberally than it would formal pleadings drafted by lawyers.”

Powell v. Lennon, 

, 1463 (11th Cir. 1990). However, our “duty to

liberally construe a plaintiff’s complaint in the face of a motion to dismiss is not

the equivalent of a duty to re-write it for [the plaintiff].” Snow v. DirecTV, Inc.,

, 1320 (11th Cir. 2006) (quotation omitted).

      To state a claim under § 1983, the plaintiff must illustrate “that the conduct

complained of (1) was committed by a person acting under color of state law and

(2) deprived the complainant of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Harvey v. Harvey, 

, 1130

(11th Cir. 1992). Private parties are generally not considered state actors for §

1983 purposes. 

can be held liable under § 1983, however, if

they act in concert with state officials in violating the plaintiff’s constitutional


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rights. Bendiburg v. Dempsey, 

, 468 (11th Cir. 1990). In order to

succeed on a § 1983 claim for conspiracy, the plaintiff must show that the parties

“reached an understanding” to deny the plaintiff his rights, the parties’ actions

must actually impinge on a federal right, and the plaintiff must prove an actionable

wrong. 

The plaintiff need not produce a “smoking gun,”

as nothing more than an “understanding” and “willful participation” between

private and state actors is necessary to show a joint action that would subject a

private party to § 1983 liability. 

(quotation omitted).

      In Harvey, the plaintiff brought a § 1983 suit against four individual

defendants and a private hospital based on their roles in her involuntary

commitment for mental health 

. We concluded that the

plaintiff’s complaint failed to allege a § 1983 conspiracy against three of the

individual defendants because it did not sufficiently allege that the private and

purported state actors had “reached an understanding.” 

We also held

that the plaintiff’s complaint failed to allege a § 1983 conspiracy between two of

the individual defendants and a state court judge because the complaint did not

sufficiently allege that the judge was aware of the conspiracy. 

case, the district court did not err in dismissing Allaben’s complaint.

To begin with, the district court did not consider matters outside of the pleadings in

dismissing the complaint. Rather, the court determined that Allaben’s allegations


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were insufficient to demonstrate the judges’ participation and knowledge of a

conspiracy.   The district court therefore was not required to follow summary

judgment procedures.

       Moreover, Allaben’s allegations of conspiracy were insufficient. Although

private individuals who conspire with state officials can be held liable under §

1983, Allaben’s allegations regarding a conspiracy between the Defendants and the

judges were conclusory and failed to demonstrate that they “reached an

understanding” to deny Allaben his due process rights. 

.     Additionally, Allaben’s allegations did not demonstrate “willful

participation” between the Defendants and the judges, 

or that the judges

were aware of a conspiracy, 

. Thus, Allaben’s complaint

failed to allege enough facts to make the claims “plausible on [their] face.”

.

       We also find no merit to Allaben’s claim that the district court abused its

discretion in rejecting his post-judgment motion for reconsideration. To toll the

appeal period, a Fed.R.Civ.P. 59(e) motion must be filed within 28 days after the

entry of judgment. Fed.R.App.P. 4(a)(4)(A)(iv); Fed.R.Civ.P. 59(e). A court may

only grant a Rule 59 motion based on “newly discovered evidence or manifest

errors of law or fact.” 

. A Rule 59(e) motion cannot be




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used to relitigate old matters, raise arguments or present evidence that could have

been raised prior to the entry of judgment. 

district court did not abuse its discretion in denying Allaben’s Rule

59(e) motion for reconsideration. Allaben’s motion for reconsideration did not

present newly-discovered evidence or manifest errors necessary for the grant of a

Rule 59 motion for reconsideration. 

motion improperly attempted

to relitigate old matters by rehashing arguments he had previously made. 

affirm.

      AFFIRMED.




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