Khalifah Whitner v. US
UNPUBLISHED PER CURIAM OPINION filed. Motion dispositions in opinion--denying Motion transfer case [998873355-2]; granting Motion to proceed in forma pauperis (FRAP 24) [998891840-2]; denying as moot Motion to waive court filing fees [998891844-2]; denying Motion for injunctive relief pending appeal (FRAP 8) [998891848-2]; denying Motion for the court to serve the notice of appeal on Defendants [998893752-2]; denying Motion for leave to file DVD/Video exhibits [998899989-3]; denying Motion to expedite decision [998899989-2]. Originating case number: 1:12-cv-00480-CMH-IDD. Copies to all parties and the district court/agency. . Mailed to: Khalifah Whitner. [12-7007]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KHALIFAH IMAN WHITNER,
Plaintiff - Appellant,
UNITED STATES; FIDELITY INVESTMENTS; J.P. MORGAN & CHASE
N.A.; FIRST PLACE BANK; BANK OF TOKYO MITSUBISHI UFJ LTD;
COMERICA BANK; BANK OF AMERICA; STATE OF MICHIGAN; LARRY
WHITNER; VENUS WHITNER; WALTER WHITNER; DELANO WRIGHT;
ANNURAL WHITNER; HIROSHI KOJIMA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:12-cv-00480-CMH-IDD)
October 31, 2012
November 7, 2012
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Khalifah Iman Whitner, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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order dismissing her civil action filed under 42 U.S.C. §§ 1981,
1983 (2006), 28 U.S.C.A. § 1346(b) (West 2006 & Supp. 2012), and
5 U.S.C. § 702 (2006) for damages and injunctive relief, and its
brief, we conclude that the district court dismissed Whitner’s
requires a district court to dismiss those civil actions filed
in forma pauperis that are frivolous or fail to state claim on
which relief may be granted.
A claim is frivolous when it lacks
an arguable basis in law or fact.
319, 322-23, 325 (1989).
Neitzke v. Williams, 490 U.S.
We review the dismissal of a claim as
frivolous for abuse of discretion.
252, 254-55 (4th Cir. 2004).
Nagy v. FMC Butner, 376 F.3d
The dismissal of a claim for
failure to state a claim on which relief may be granted is
reviewed de novo.
Slade v. Hampton Rds. Reg’l Jail, 407 F.3d
574 F.2d 1147, 1151 (4th Cir. 1978), her complaint must contain
factual allegations sufficient “to raise a right to relief above
the speculative level” and that “state a claim to relief that is
plausible on its face.”
544, 555, 570 (2007).
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Bell Atl. Corp. v. Twombly, 550 U.S.
This “plausibility standard requires a
plaintiff to demonstrate more than a sheer possibility that a
Whitner’s allegations fail to state a plausible claim
for relief under § 1981 against any named Defendant because she
intentionally discriminated against her on the basis of race
See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
allegations against all Defendants except the United States and
the State of Michigan also fail to state plausible claims for
relief under 42 U.S.C. § 1983 for constitutional violations, as
the complaint does not allege facts establishing any basis for
concluding these Defendants took any action fairly attributable
to the state.
See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th
organizations and individuals may be treated as having occurred
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under color of state law for purposes of § 1983 if “there is
such a close nexus between the State and the challenged action
that seemingly private behavior may be fairly treated as that of
the State itself” (internal quotation marks omitted)).
meant to raise claims under § 1983 against the United States and
the State of Michigan, such claims are frivolous.
constitutional rights, Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Whitner has not
named any such officials as Defendants in this case, and this
cause of action does not extend to such claims advanced against
Amendment, and there is no indication in this case that such
immunity from suit has in any way been abrogated by Congress.
See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-57 (1996)
(explaining that Congress’ intent to abrogate the immunity of a
consented to civil rights suits in federal court).
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§ 1346(b), the jurisdictional grant of the Federal Tort Claims
jurisdiction over a certain category of claims for which the
United States has waived its sovereign immunity and rendered
510 U.S. 471, 477 (1994).
Whitner’s claims against the United
because Whitner fails to allege facts sufficient to show that
the United States, if a private person, would be liable to her
See Meyer, 510 U.S. at 477 (listing the six elements
necessary for a cognizable claim under § 1346(b)).
conclude that Whitner’s allegations fail to state any plausible
basis for granting her relief pursuant to the APA, as she fails
to identify any final agency action entitling her to review in
See 5 U.S.C. § 704 (2006) (“Agency action made
reviewable by statute and final agency action for which there is
no other adequate remedy in a court are subject to judicial
(1990) (explaining that it is the plaintiff’s burden to identify
specific federal conduct and explain how it qualifies as “final
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Finally, as Whitner’s claims do not plausibly entitle
her to relief or lack a basis in law, we conclude that the
motions for emergency injunctive relief, which we construe as
motions for preliminary injunctions.
See Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008) (listing the four
elements for entitlement to relief in the form of a preliminary
injunction); WV Ass’n of Club Owners & Fraternal Servs., Inc. v.
Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (stating standard of
We deny as moot Whitner’s motion seeking waiver of court filing
We deny her motions to transfer the case, for injunctive
relief pending appeal, for the court to serve the notice of
appeal on Defendants, to expedite decision, and seeking leave to
file DVD/Video exhibits.
We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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