Harpo v. LaGrua et al

Filing 4

OPINION AND ORDER DISMISSING 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,
Plaintiff,
v.

1:16-cv-3965-WSD

DANIEL J. CRAIG, Judge,
Richmond County Superior Court,
et al.,
Defendants.
WILHY HARPO,
Plaintiff,
v.

1:16-cv-4028-WSD

SHAWN ELLEN LAGRUA, Judge,
Fulton County Superior Court;
Official and Individual Capacities, et
al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on required frivolity review, pursuant to
28 U.S.C. § 1915(e)(2)(B), of Plaintiff Wilhy Harpo’s (“Plaintiff”) Complaints
filed in civil action numbers 1:16-cv-3965-WSD (“October 24th Action”), and
1:16-cv-4028 (“October 27th Action”).

I.

BACKGROUND
These are 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 these actions.
In these actions, which contain substantially similar allegations to one
another and to Harpo’s previous filings, Defendant again seeks to challenge a
dispossessory action brought by Broadstone in the Magistrate Court of Fulton
County, Georgia. (See October 24th Action, [3] at Prayer for Relief). Harpo
2

seeks an emergency restraining order or injunction suspending the execution of a
writ of possession issued by the Fulton County Magistrate Court. (Id.; October
27th Action, [3] at 6). Harpo also seeks an order stating that Judges Shawn
LaGrua and Judge Daniel J. Craig do not have authority to preside over pending
actions concerning Harpo. (October 27th Action, [3] at 7). Harpo also asserts over
a dozen claims against Judge LaGrua, Judge Craig, the Fulton County District
Attorney, the Richmond County District Attorney, the State Bar of Georgia, and
the Governor of Georgia (together, “Defendants”). These claims include violations
of state and federal RICO laws, false arrest, false imprisonment, libel, slander,
excessive force, conspiracy to deny access to courts, terroristic threats, and “other
claims.” (Id. at 6). Harpo seeks $1,000,000 in damages, and $2,000,000 in
damages specifically from Judge Craig. (Id.; October 24th Action, [3] at 8).
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.,
3

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
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).

4

Plaintiff filed his Complaints 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).
B.

Analysis

Harpo’s complaints attempt to challenge a state-court dispossessory action.
To the extent Harpo 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 Harpo 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 Harpo asserts defenses or counterclaims based on federal
5

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
diversity jurisdiction 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 amountin-controversy, and a claim seeking ejectment cannot be reduced to a monetary
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
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.
6

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 Harpo 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
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)).
Further, Harpo’s claims against Judges LaGrua and Craig are clearly
baseless. Harpo claims Judges Craig and LaGrue “committed perjury,” when they
secured “wrongful conviction[s]” to prevent Harpo from suing the Richmond
County and Fulton County governments for racial discrimination. He claims the
judges thereafter refused to recuse themselves from cases they presided over in
7

which Harpo was a party. “Judges are entitled to absolute judicial immunity from
damages for those acts taken while they are acting in their judicial capacity unless
they acted in the clear absence of all jurisdiction.” Sibley v. Lando, 437 F.3d
1067, 1070 (11th Cir. 2005) (internal quotation marks omitted) (quoting Bolin
v. Story, 225 F.3d 1234, 1239 (11th Cir.2000)). Harpo does not show the judges
acted in the clear absence of all jurisdiction.
To the extent Harpo raises claims against the district attorneys of Richmond
County and Fulton County, prosecutors have absolute immunity from damages in
Section 1983 actions for their prosecutorial actions. Imbler v. Pachtman, 424 U.S.
409, 430-31 (1976) (holding that a state prosecuting officer had absolute immunity
under § 1983 when initiating a prosecution and when presenting a state’s case);
Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000) (extending immunity to
federal prosecutors in Bivens actions).2

2

Finally, Harpo raises conclusory assertions that the Governor of Georgia and
the State Bar of Georgia “have had direct and superior knowledge of the same said
facts, but have refused to terminate” or otherwise take any action against Judge
Craig. (October 24th Action, [3] at 5). Because the Court finds Harpo’s claims
against the judges clearly baseless, his apparent supervisory liability claims against
the Governor and the State Bar are also baseless.
8

The Court finds Harpo’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.

9