Guthrie v. U.S. Government, 2015 U.S. App. LEXIS 12248 (11th Cir. July 1, 2015):

Plaintiff-appellant Randolph Guthrie ("Guthrie"), proceeding pro se, appeals the district court's dismissal of his pro se sixth amended complaint alleging 98 counts under the common law, Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1) and §§ 2671-80, and the civil remedies provision of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964. The district court so ruled because the complaint was frivolous, there was no subject matter jurisdiction, and Guthrie's claims were barred by the doctrine of res judicata. On appeal, Guthrie disputes these conclusions.

I.  BACKGROUND

In 2005, Guthrie was prosecuted and convicted of copyright infringement. During his imprisonment and afterwards, he alleges that he was mistreated in various ways by the United States and the other 34 defendants originally named in this case. The nature of the alleged mistreatment is summarized in a previous order from this Court:

Here, Guthrie alleged that the government conspired with his [*2]  attorneys, landlords, television and internet service providers, social media service providers, hospitals, pharmacies, municipalities, mail carriers, and others to harm him in various ways. ***

The defendants moved for dismissal, challenging the court's subject matter jurisdiction under Rule 12(b)(1) and the sufficiency of the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Three defendants also raised personal jurisdiction challenges. The district court issued an order on September 2, 2014, in which it granted the defendants' motions to dismiss Guthrie's sixth amended complaint, having decided that it was frivolous. Because Guthrie had filed two earlier, similar lawsuits in the Southern District of New York, both of which were dismissed with prejudice, the court further determined that res judicata applied to some of the claims, leaving no federal question in the surviving claims. Nor was there complete diversity of parties. Thus, the district court also determined that it lacked subject matter jurisdiction.

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III.  ANALYSIS

"When a district court has pending before it both a 12(b)(1) motion and a 12(b)(6) motion, the generally preferable approach, if the 12(b)(1) motion essentially challenges the existence of a federal cause of action, is for the court to find jurisdiction and then decide the 12(b)(6) motion." Jones v. State of Ga., 725 F.2d 622, 623 (11th Cir. 1984) (citing Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.), cert. denied, 454 U.S. 897 (1981)). However, we permit exceptions to this "when 'the plaintiff's claim has no plausible foundation or is clearly foreclosed by a prior Supreme Court decision.'" Id. (quoting Williamson, 645 F.2d at 416). Thus, when a claim is potentially frivolous, the order in which an appellate court may address dismissal of that claim is not rigid.

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B.  The Frivolity of Guthrie's Suit

The district court also dismissed Guthrie's sixth amended complaint under

Rule 12(b)(6) because his "claims are patently frivolous." In our December 17, 2014 order, we affirmed the district court's order as it pertained to fourteen of the defendants, including the United States. We see no reason to reach a different outcome with [*9]  regard to the remaining defendants.

Rule 8(a)(2) requires that a plaintiff's claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed.R.Civ.P. 8. The Supreme Court has explained that a claim for relief must contain sufficient factual allegations to cross "the line between possibility and plausibility." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). That is, although the district court is bound to "accept as true all of the allegations contained in a complaint," this is limited by the rule that "only a complaint that states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Related to this is the rule that a district court has the inherent power to dismiss an action that is "so patently lacking in merit as to be frivolous." Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526 & n.3 (11th Cir. 1983). It is important to keep frivolity distinct from mere improbability. "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable[.]" Twombly, 550 U.S. at 556. However, improbability tips into frivolity where the "allegations . . . are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, [*10]  or experiences in time travel." Iqbal, 556 U.S. at 696 (Souter, J., dissenting); see also Bilal, 251 F.3d at 1349 (Frivolous claims include those describing "fantastic or delusional scenarios.")

The district court did not abuse its discretion in dismissing Guthrie's sixth amended complaint for frivolity. Guthrie's fantastical congeries of harms is far beyond mere improbability. According to his sixth amended complaint, the defendants have-sometimes individually, sometimes in conspiracy-put bacteria in his ear, causing it to become infected; injected bacteria under his skin while he was asleep, causing him to develop pimples on his face; piped pharmaceutical gases into his apartment through a "gas distribution apparatus"; had his neighbors play loud music at night; had nurses draw more blood than was medically necessary so that mysterious tests could be conducted; made sure that his internet social networking was controlled by government agents; sabotaged his iPhone and satellite television; substituted lower dosage drugs or placebos for what he had been prescribed; delayed his mail delivery; ordered a person to have a car accident with him; poisoned his baby Macaw parrot; and gave him a drug that made him feel that he was passing [*11]  a kidney stone.

While there are no little green men or time machines in Guthrie's sixth amended complaint, it is fantastic enough to have been halted at the starting gate by the district court. We therefore conclude that the district court did not abuse its discretion by dismissing the complaint. See Betty K Agencies, Ltd., 432 F.3d at 1337; Bilal, 251 F.3d at 1349. Accordingly, we affirm.