Case: 12-15394 Date Filed: 09/16/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15394
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-02395-CAP
CATHLEEN R. GARY,
Plaintiff-Appellant,
versus
UNITED STATES GOVERNMENT,
PRESIDENT OF THE UNITED STATES OF AMERICA,
in his official capacity,
NATIONAL SECURITY AGENCY/CENTRAL
SECURITY SERVICE,
GENERAL KEITH B. ALEXANDER,
U.S. CENTRAL INTELLIGENCE AGENCY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 16, 2013)
Case: 12-15394 Date Filed: 09/16/2013 Page: 2 of 5
Before DUBINA, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Cathleen Gary appeals the district court’s sua sponte dismissal of her pro se
civil complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Gary filed a
civil complaint against a number of high-level government officials, including
President Barack Obama and various national intelligence agencies, asserting that
they had implanted microchips into her body that caused tumors and tissue
damage. She alleged that these microchips were used to conduct biomedical
research regarding her reproductive system, to track her movements, and to cause
her pain. She further alleged that the defendants drugged and assaulted her in
order to cover up evidence of her damages, and that these assaults included
invasive surgery, tissue removal, and inserting foreign objects into her body. Gary
sought leave to proceed in forma pauperis (“IFP”), and she also filed a motion for
injunctive relief and a motion for class action certification.
A magistrate judge issued an order and a report and recommendation
(“R&R”), which granted Gary’s motion to proceed IFP. However, the magistrate
judge determined that Gary’s allegations were “fanciful and delusional” and
recommended dismissing her complaint pursuant to § 1915(e)(B)(i) and (ii) for
frivolity and for failure to state a claim. Gary objected to the R&R, but the district
court adopted the R&R as the order of the court. The court dismissed Gary’s
2
Case: 12-15394 Date Filed: 09/16/2013 Page: 3 of 5
complaint as frivolous and dismissed as moot Gary’s motion for an injunction and
motion for class action certification.
On appeal, Gary asserts that the court abused its discretion in dismissing her
complaint as frivolous because her allegations were not fanciful or removed from
reality, and implantation of electronic devices is an action being litigated in the
court system. She further argues that the court abused its discretion by sua sponte
dismissing her complaint without providing her leave to amend, as she should have
been allowed to cure any deficiencies in her complaint. She also asserts that she
alleged sufficient facts to state a claim for relief. 1
We review de novo a sua sponte dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii), and review for abuse of discretion a sua sponte dismissal as
frivolous under § 1915(e)(2)(B)(i). Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th
Cir. 2003). We also review for abuse of discretion denials of leave to amend.
Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir. 2002).
Section 1915(e)(2) of Title 28 of the U.S. Code states that a claim filed by a
person proceeding in forma pauperis shall be dismissed if the court determines the
action or appeal is frivolous or malicious, or fails to state a claim upon which relief
may be granted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A lawsuit is frivolous if it is
1
Gary also makes a passing reference to the district court’s dismissal of her motion for an
injunction and motion for class action certification. Because such passing references are
insufficient to raise an issue on appeal, those claims have been abandoned. See Greenbriar, Ltd.
v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
3
Case: 12-15394 Date Filed: 09/16/2013 Page: 4 of 5
“without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (internal quotation marks omitted). Dismissal for frivolity is
warranted when a claim is based on an indisputably meritless legal theory, or when
it relies on factual allegations that are “clearly baseless,” which includes
allegations that are “fanciful,” “fantastic,” and “delusional.” Denton v. Hernandez,
504 U.S. 25, 32-33, 112 S. Ct. 1728, 1733 (1992) (internal quotation marks
omitted). “[A] finding of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly incredible . . . .” Id. at 33,
112 S. Ct. at 1733.
We have held that when a more carefully drafted complaint might state a
claim, a plaintiff must be given at least one chance to amend the complaint before
the district court dismisses the action with prejudice. Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 2002) (en banc) (holding that the court
was not required to sua sponte grant leave to amend to counseled plaintiffs who
never requested such leave, but noting that the holding did not disturb a pro se
litigant’s right to amend). Although a pro se litigant generally should be permitted
to amend her complaint, a district court need not allow amendment when it would
be futile. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). “Leave to
4
Case: 12-15394 Date Filed: 09/16/2013 Page: 5 of 5
amend a complaint is futile when the complaint as amended would still be properly
dismissed or be immediately subject to summary judgment for the defendant.” Id.
We conclude from the record that the district court did not abuse its
discretion in dismissing Gary’s complaint as frivolous, as a review of the
complaint shows that her allegations were irrational and wholly incredible.
Furthermore, we conclude that the district court did not abuse its discretion by not
affording Gary an opportunity to amend her complaint because any amendment
would have been futile, as none of Gary’s allegations are credible or rational.
Accordingly, we affirm the district court’s judgment of dismissal.
AFFIRMED.
5