One Opportunity to Replead Satisfies Due Process Before Dismissal With Prejudice for Shotgun Pleading; Prior Recusal Motions Alone Do Not Require Sua Sponte Recusal

Introduction

In Thomas Pepe v. Saul B. Villalobos (11th Cir. July 8, 2026) (per curiam) (not for publication), pro se plaintiff-appellant Thomas Pepe appealed the Middle District of Florida’s dismissal with prejudice of his amended complaint. Pepe’s suit named multiple defendants and asserted an array of claims—“civil RICO violations, fraud, elder abuse, civil rights violations, and intentional infliction of emotional distress”—arising out of an alleged real-estate transaction involving estate property.

The appeal presented two principal issues: (1) whether dismissing Pepe’s amended complaint as an impermissible shotgun pleading violated due process because he purportedly lacked an additional chance to respond, amend, or clarify; and (2) whether a magistrate judge should have recused sua sponte under 28 U.S.C. § 455(a) because he had been the target of recusal motions in Pepe’s other federal cases.

Summary of the Opinion

The Eleventh Circuit affirmed. On the shotgun-pleading/due-process issue, the court held that Pepe received what Eleventh Circuit law generally requires: the court (through the magistrate judge) dismissed the initial complaint, explained the deficiencies, and gave Pepe one opportunity to amend. After the amended complaint still suffered from the same defects, the district court was not required to offer further chances to replead before dismissing with prejudice.

On recusal, because Pepe did not seek recusal in the district court, the court reviewed only for plain error and found none. The court held that the mere fact that the magistrate judge was the subject of recusal motions in Pepe’s other cases would not cause an objective observer to significantly doubt impartiality, and adverse rulings in other cases are not evidence of bias.

Analysis

Precedents Cited

  • Jackson v. Bank of Am., 898 F.3d 1348 (11th Cir. 2018)
    The opinion relies on Jackson for two related propositions about shotgun pleadings: (i) when confronted with a shotgun pleading, a district court should strike/dismiss and instruct repleading; and (ii) after the plaintiff receives “fair notice of the defects” and a “meaningful chance to fix” them but fails to do so, the district court does not abuse its discretion by dismissing with prejudice on shotgun-pleading grounds. Here, Jackson is the central authority supporting affirmance because Pepe had already been given notice and one chance to amend.
  • Woldeab v. DeKalb Cnty. Bd. of Educ., 885 F.3d 1289 (11th Cir. 2018)
    The court cites Woldeab for the general rule that, where a more carefully drafted complaint might state a claim, it is an abuse of discretion to dismiss a pro se complaint with prejudice without providing at least one opportunity to amend. The panel distinguishes that scenario factually: Pepe received the one opportunity contemplated by Woldeab.
  • Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291 (11th Cir. 2018)
    Vibe Micro supplies the standard of review: dismissals on shotgun-pleading grounds are reviewed for abuse of discretion. Applying that deferential standard, the panel found no abuse given the prior leave to amend and continued defects.
  • Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008)
    The court uses Timson to apply abandonment principles to pro se appeals: issues not briefed are deemed abandoned. This mattered because Pepe focused on due process (lack of additional chances) and did not meaningfully challenge the substantive shotgun-pleading or failure-to-state-a-claim determinations, narrowing the scope of appellate review.
  • Campbell v. Air Jam., Ltd., 760 F.3d 1165 (11th Cir. 2014)
    Cited to emphasize the limit of liberal construction for pro se litigants: courts do not act as de facto counsel and will not rewrite deficient pleadings to sustain an action—reinforcing why the burden remained on Pepe to file a compliant amended complaint.
  • Hamm v. Members of Bd. of Regents of Fla., 708 F.2d 647 (11th Cir. 1983)
    Provides the standard for recusal issues not raised below: if no motion to recuse was filed in the district court, appellate review is limited to plain error as to whether the judge should have recused sua sponte.
  • United States v. Patti, 337 F.3d 1317 (11th Cir. 2003)
    Supplies the § 455(a) test: whether an objective, disinterested, fully informed lay observer would entertain a significant doubt about impartiality, with doubts resolved in favor of recusal. The panel applied Patti and concluded that being the subject of recusal motions in other cases—without more—does not generate an appearance of partiality in this case.
  • McWhorter v. City of Birmingham, 906 F.2d 674 (11th Cir. 1990)
    Cited to reject the idea that rulings against a litigant in the same or related cases can serve as the basis for recusal. This foreclosed Pepe’s attempt to infer bias from the magistrate judge’s handling of his other cases.
  • Liteky v. United States, 510 U.S. 540 (1994)
    Reinforces that opinions formed during current or prior proceedings do not constitute bias warranting recusal unless they show “deep-seated favoritism or antagonism” making fair judgment impossible. The panel invoked Liteky to underscore that adverse rulings, even in multiple cases, are not enough.

Legal Reasoning

1) Shotgun pleadings, due process, and the “one meaningful chance” rule

The court’s analysis is procedural and turns on what process is “due” when a complaint is dismissed for pleading defects. Consistent with Eleventh Circuit shotgun-pleading jurisprudence, the panel treated the required safeguard as: (a) identification of defects and (b) at least one meaningful opportunity to correct them—particularly for a pro se litigant.

On the record described, Pepe’s initial complaint was dismissed under 28 U.S.C. § 1915(e) screening and he was told what to fix. He then filed an amended complaint, but the magistrate judge concluded the amended pleading remained an impermissible shotgun pleading and failed to state a claim; the district court adopted that recommendation and dismissed with prejudice.

The key legal move is the panel’s application of Jackson v. Bank of Am.: once a litigant has had “fair notice” and a “meaningful chance to fix” the pleading defects, the district court is not compelled to allow additional amendments before dismissing with prejudice. Thus, Pepe’s “due process” framing failed because the process he claimed to be denied (another round of repleading) is not automatically required when the first opportunity has already been afforded and squandered.

2) Recusal under § 455(a) when no motion was filed below

The panel first addressed the procedural posture: Pepe did not move to recuse in the district court, so the question on appeal is not whether recusal would have been advisable as a fresh matter, but whether it was plain error for the judge not to recuse sua sponte (Hamm v. Members of Bd. of Regents of Fla.).

Substantively, the panel applied the objective-observer standard from United States v. Patti. Pepe’s asserted “appearance of bias” was based on the judge having been named in recusal motions in other cases and on adverse rulings in related actions. The court held those circumstances do not create a significant doubt about impartiality, particularly where the record contained no indication of prejudice. The panel further relied on McWhorter v. City of Birmingham and Liteky v. United States to emphasize that adverse rulings—even repeated—are not evidence of bias absent the kind of extreme antagonism described in Liteky.

The opinion also notes the statutory distinction between 28 U.S.C. § 144 and 28 U.S.C. § 455: § 144 requires a timely, technically sufficient affidavit and motion; because none was filed, § 144 was inapplicable, reinforcing the limited review posture.

Impact

  • Reinforcement of controlled amendment opportunities in shotgun-pleading cases: Even for pro se plaintiffs, this decision underscores that one well-explained opportunity to amend often satisfies procedural fairness. After that, dismissal with prejudice is within the district court’s discretion when defects persist.
  • Appellate narrowing via abandonment: The application of Timson v. Sampson highlights a recurring pitfall for pro se appellants: focusing on generalized fairness arguments while failing to attack the actual legal bases for dismissal can forfeit merits review.
  • Recusal doctrine guarded against strategic or serial recusal allegations: By holding that prior recusal motions (and prior adverse rulings) do not, without more, create an appearance of bias, the opinion limits the potential for litigants to manufacture recusal through repetitive filings across cases.
  • Practical consequences under § 1915(e) screening: In forma pauperis screening continues to function as an early gatekeeping mechanism, and litigants must meet basic pleading standards even at the screening stage.

Complex Concepts Simplified

  • Shotgun pleading: A complaint so poorly organized or vague that the court and defendants cannot tell which factual allegations support which legal claims, often because it lumps defendants together, uses conclusory assertions, or fails to separate claims into distinct counts.
  • 28 U.S.C. § 1915(e) screening: When a plaintiff proceeds in forma pauperis (without paying filing fees due to indigency), the court must screen the complaint and dismiss it if it is frivolous, fails to state a claim, or seeks relief from immune defendants.
  • Dismissal “with prejudice”: The case is closed and cannot be refiled based on the same claims; it is a final disposition (as opposed to “without prejudice,” which leaves room to refile).
  • Abuse of discretion: A deferential appellate standard; the appellate court will affirm unless the district court made a clear error of judgment or applied an incorrect legal standard.
  • Plain error (recusal context): An even more demanding standard used when the party failed to raise the issue below; reversal requires a clear and obvious error that affected substantial rights and seriously affects the fairness or integrity of proceedings.
  • § 455(a) “appearance of bias” test: The question is not the judge’s subjective intent; it is whether a fully informed, objective observer would significantly doubt the judge’s impartiality.

Conclusion

The decision crystallizes two practical rules in Eleventh Circuit civil practice. First, when a pro se plaintiff files a shotgun pleading, due process is ordinarily satisfied if the court explains the defects and grants one meaningful opportunity to amend; persistent failure permits dismissal with prejudice under abuse-of-discretion review. Second, recusal under § 455(a) is not triggered merely because the judge has been targeted by recusal motions in a litigant’s other cases or has ruled against that litigant before—especially where no recusal motion was filed below and the record shows no indicia of bias.