Harpo et al v. Broadstone Court, LLC et al

Filing 6

OPINION AND ORDER DISMISSING this action pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Judge William S. Duffey, Jr on 2/3/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILHY HARPO, et al.
Plaintiff,
v.

1:16-cv-2956-WSD

LESLIE ONNA, and All Other
Occupants, and WILHY HARPO,
Defendants.

OPINION AND ORDER
This matter is before the Court on required frivolity review of Plaintiff
Wilhy Harpo’s (“Plaintiff”) Complaint [1.1] pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
I.

BACKGROUND
This is the latest in a series of actions filed in this Court by Mr. Harpo in

which he seeks relief from a dispossessory action brought against him by
Broadstone Maple, LLC (“Broadstone”) in the Magistrate Court of Fulton County,
Georgia. The Court has remanded each previous case for lack of subject matter
jurisdiction. See, e.g., Order, Broadstone Maple, LLC v. Alexander Corporate
Accommodations, LLC, No. 1:16-cv-2774-WSD (N.D. Ga. August 2, 2016) (Doc.
4). Because Plaintiff is a frequent filer of frivolous lawsuits, the Court has

previously ordered him “to disclose his full litigation history in any civil rights
complaint and/or [IFP] affidavit that he files.” See, e.g., Williams v. Harpo, No.
1:16-cv-12225-WSD (N.D. Ga. 2016) (ECF No. 2 at 2); Harpo v. City of Atlanta,
No. 1:16-cv-1067-WSD (N.D. Ga. 2016) (ECF No. 2 at 1-2); Harpo v. City of
Atlanta, No. 1:14-cv-2157-WSD (N.D. Ga. 2014) (ECF No. 2 at 1-2); Harpo
v. Fulton Cty. Sheriff, No. 1:14-cv-2208-WSD (N.D. Ga. 2014) (ECF No. 2 at
1-2). It appears Plaintiff has complied with that requirement in filing this action.
(See [1.2] at 8-9 (listing 18 actions in which Mr. Harpo was a party)).
On August 12, 2016, Defendant Wilhy Harpo (“Defendant”) filed his
application for leave to proceed in forma pauperis (“IFP”) [1] and his Complaint
[1.1]. Defendant again seeks to challenge a dispossessory action brought by
Broadstone in the Magistrate Court of Fulton County, Georgia (See Compl. at
Prayer for Relief). The Complaint also contains a number of highly troublesome
threats of violence. For instance, Plaintiff states that he “will simply kill [his]
known enemies or be killed[,]” and that he “will get the respect [he] gives and
deserves to receive by consent or force[.]” (Compl. ¶¶ 112, 114). He states that
his “Complaint is designed, in part, to serve as public notice of official public
abuse and Harpo’s warning to the said defendant public officials.” (Id. ¶ 115). He

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further states “we will all soon see if an how much both []black and blue lives
really matter.” (Id. ¶ 116).
II.

DISCUSSION
A.

Legal Standard

A court must dismiss a complaint filed in forma pauperis if at any time the
court determines the action is frivolous or malicious or that it fails to state a claim
on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state
a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v. H&S, Inc.,
366 F. App’x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997)). Under this standard, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
Review for frivolousness, on the other hand, “‘accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
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also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.’”
Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has
little or no chance of success,” that is, when it appears “from the face of the
complaint that the factual allegations are ‘clearly baseless’ or that the legal theories
are ‘indisputably meritless.’” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)
(quoting Neitzke, 490 U.S. at 327).
Plaintiff filed his Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must comply with the threshold
requirements of the Federal Rules of Civil Procedure. See Beckwith v. Bellsouth
Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir. 2005). “Even though a pro se
complaint should be construed liberally, a pro se complaint still must state a claim
upon which the Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26,
28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient
pleading.” Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
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B.

Analysis

Plaintiff’s Complaint attempts to challenge a state-court dispossessory
action. To the extent Plaintiff seeks to remove the state-court action, as explained
in the Court’s previous orders, the Court lacks subject matter jurisdiction over it.
The Court takes judicial notice of Broadstone’s complaint, which Plaintiff
previously provided the Court in Broadstone Maple v. Harpo, No. 1:16-cv-1661.
The complaint shows that Broadstone asserts a dispossessory claim and does not
allege federal law claims. That Defendant asserts defenses or counterclaims based
on federal law cannot confer federal subject-matter jurisdiction over this action.
See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003); Holmes Group, Inc.
v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830-32 (2002). Removal is
not proper based on federal question jurisdiction.1 The Court would also lack

1

To the extent Defendant claims removal under 28 U.S.C. § 1443 based on
the bias of state court judges, his allegations fall short of the specific language of
racial equality that section 1443 demands. See Kopec v. Jenkins, 357 F. App’x
213, 214 (11th Cir. 2009) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966));
see also 28 U.S.C. § 1443 (providing exception to the well-pleaded complaint rule
for removal of an action that is “[a]gainst any person who is denied or cannot
enforce in the courts of such State a right under any law providing for the equal
civil rights of citizens of the United States”); Rachel, 384 U.S. at 788 (Section
1443 requires defendant to show “both that the right upon which they rely is a
‘right under any law providing for . . . equal civil rights,’ and that they are ‘denied
or cannot enforce’ that right in the courts of Georgia.”); Novastar Mortg., Inc.
v. Bennett, 173 F. Supp. 2d 1358, 1362 (N.D. Ga. Nov. 5, 2001) (“There is no
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diversity action over any attempted removal, because Broadstone’s complaint,
which only seeks ejectment and past due rent and fees, does not establish that the
amount-in-controversy exceeds $75,000. See Novastar Mortg. Inc. v. Bennett, 173
F. Supp. 2d 1358, 1361 (N.D. Ga. 2001), aff’d, 35 F. App’x 585 (11th Cir. 2002)
(a court must look to the complaint to determine the amount-in-controversy, and a
claim seeking ejectment cannot be reduced to a monetary sum for purposes of
determining amount-in-controversy); Fed. Home Loan Mortg. Corp. v. Williams,
Nos. 1:07-cv-2864-RWS, 1:07-cv-2865-RWS, 2008 WL 115096, at *2 (N.D. Ga.
Jan. 29, 2008) (“[A] dispossessory proceeding under Georgia law is not an
ownership dispute, but rather only a dispute over the limited right to possession,
title to property is not at issue and, accordingly, the removing Defendant may not
rely on the value of the property as a whole to satisfy the amount in controversy
requirement.”).
To the extent the dispossessory action has been completed and Plaintiff
seeks to have the Court find that the proceeding was wrongful and overturn a writ
of possession issued by a state court, the Court lacks jurisdiction under the

cognizable claim for a civil rights violation presented in this case . . . [because]
[t]here is no reference in any pleading to ‘any law providing for the equal civil
rights of citizens of the United States, or of all persons within the jurisdiction
thereof.’”). Jurisdiction is not proper based on 28 U.S.C. § 1443.
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Rooker-Feldman doctrine to do so. Doe v. Fla. Bar, 630 F.3d 1336, 1341 (11th
Cir. 2011) (Federal district courts “generally lack jurisdiction to review a final state
court decision.”) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) &
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)).
The Court finds Plaintiff’s claims are clearly baseless, and this action is
dismissed pursuant to the required frivolity review under 28 U.S.C.
§ 1915(e)(2)(B). Carroll, 984 F.2d at 393.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that this action is DISMISSED pursuant to

28 U.S.C. § 1915(e)(2)(B).

SO ORDERED this 3rd day of February, 2017.

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