Ghee v. United States of America

Filing 4

ORDER AND OPINION dismissing without prejudice this action as frivolous pursuant to 28 USC 1915(e)(2). Signed by Judge Julie E. Carnes on 1/29/13. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DEDRA GHEE,
Plaintiff,
CIVIL ACTION NO.
v.

1:10-cv-0381-JEC

UNITED STATES OF AMERICA,
Defendant.
ORDER & OPINION
In this pro se action, plaintiff asserts claims against the
United States government for negligence and fraud allegedly arising
from the Eleventh Circuit’s dismissal of her appeal in a prior
lawsuit. (Compl. [2].) Plaintiff has been granted in forma pauperis
status.

The case is on submission to the Court for an initial

frivolity review under 28 U.S.C. § 1915(e)(2).
I.

(Order [3].)

28 U.S.C. § 1915(e)(2) STANDARD
A federal court must dismiss an in forma pauperis action that is

“frivolous” or “fails to state a claim on which relief may be
granted.”

28 U.S.C. § 1915(e)(2).

A claim is frivolous when it

appears from the face of the complaint that the factual allegations
are

“clearly

baseless”

and

the

legal

theories

“indisputably

meritless,” or when it is apparent that “the defendant’s absolute
immunity justifies dismissal before service of process.”

AO 72A
(Rev.8/82)

Carroll v.

Gross, 984 F.2d 392, 393 (11th Cir. 1993).

A complaint fails to

state a claim on which relief may be granted when it does not include
sufficient factual matter to permit a “reasonable inference that the
defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
II.

PLAINTIFF’S CLAIMS
In her complaint, plaintiff asserts state law claims against the

United States government for fraud and negligence based on the
Eleventh Circuit’s dismissal of her appeal on September 8, 2009.
(Compl. [2] at 1-2.)

In support of her claims, plaintiff alleges

that an “employee/contractor” of the Eleventh Circuit dismissed the
appeal “by misrepresentation of facts, fraud, and false pretense” and
through the use of “schemes and tricks.”

(Id. at 2.)

Plaintiff does

not provide any additional details to support her claims.
$36 million in damages.

She seeks

(Id.)

The above allegations do not come close to meeting the standard
set forth in Twombly and Iqbal for stating a claim upon which relief
may be granted.

To state a cause of action for negligence under

Georgia law, plaintiff must demonstrate: (1) a legal duty to conform
to a certain standard of conduct, (2) a breach of that standard, (3)
a legally attributable causal connection between the breach and the
resulting injury, and (4) loss or damage to plaintiff’s legally
2

AO 72A
(Rev.8/82)

protected interest resulting from the breach.
304 Ga. App. 200, 201 (2010).

Hunsucker v. Belford,

The complaint does not include any

facts to plausibly suggest the presence of those elements in this
case.

See Iqbal, 556 U.S. at 678.
Plaintiff’s fraud claim is likewise deficient. To state a claim

for fraud under Georgia law, plaintiff must show: (1) a false
representation by defendant, (2) scienter, (3) an intention to induce
plaintiff to act or refrain from acting, (4) justifiable reliance,
and (5) damage to plaintiff.
683 (2011).

Thompson v. Floyd, 310 Ga. App. 674,

Based on those elements, there are no facts in the

complaint that would permit a “reasonable inference” that the United
States government committed fraud against plaintiff. Iqbal, 556 U.S.
at 678.

In addition, plaintiff has made no attempt whatsoever to

comply with the heightened pleading requirements that are applicable
to a fraud claim under Federal Rule 9(b).

FED. R. CIV. P. 9(b)

(requiring a plaintiff to “state with particularity the circumstances
constituting fraud”).
Moreover, any attempt to amend the complaint would be futile
because the United States has sovereign immunity for the claims
asserted by plaintiff.

See Dalrymple v. United States, 460 F.3d

1318, 1324 (11th Cir. 2006).
provides

a

limited

circumstances.

Id.

waiver

The Federal Tort Claims Act (“FTCA”)
of

sovereign

under

certain

However, plaintiff does not allege any facts to
3

AO 72A
(Rev.8/82)

immunity

suggest that the FTCA is applicable here.

To the extent she intends

to assert claims against the Eleventh Circuit judges or clerk based
on the dismissal of her appeal, those individuals have absolute
judicial immunity.

Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir.

2005)(judges are entitled to absolute immunity for decisions made in
their judicial capacity) and Hyland v. Kolhage, 267 Fed. App’x 836,
842 (11th Cir. 2008)(court clerks have absolute immunity for acts
they are specifically required to do under court order or at a
judge’s direction).
CONCLUSION
For all of the above reasons, the Court finds that plaintiff’s
complaint does not survive scrutiny under 28 U.S.C. § 1915(e)(2).
Accordingly,

the

Court

DISMISSES

plaintiff’s

complaint

prejudice and directs the Clerk to CLOSE this action.

SO ORDERED, this 29th day of January, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

4

AO 72A
(Rev.8/82)

without