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Harpo v. Howard

United States District Court, N.D. Georgia, Atlanta Division

February 3, 2017

WILHY HARPO, Plaintiff,
BURNICE A. HOWARD, et al., Defendants.



         This matter is before the Court on the 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 Harpo has complied with that requirement in filing this action.

         On October 17, 2016, Harpo filed his Complaint [3]. In it, Harpo again seeks to challenge a dispossessory action brought by Broadstone in the Magistrate Court of Fulton County, Georgia. (See Compl. at Prayer for Relief).

         Harpo also alleges that, on July 2, 2016, he was arrested by Deputy Burnice A. Howard at the Fulton County courthouse, and charged with willful obstruction of law enforcement officers by use of threats or violence, in violation of O.C.G.A. § 16-10-24(b), disorderly conduct, in violation of O.C.G.A. § 16-11-39, and criminal trespass, in violation of O.C.G.A. § 16-7-21. (See Compl. at 22-26). Harpo included with his Complaint an affidavit by Howard. In the affidavit, Howard states that Harpo was asked to leave the courthouse for being disorderly, that he refused multiple requests to leave, that he resisted arrest by fighting Howard, and continued resisting arrest after he was handcuffed. (Id. at 26). Harpo alleges he sustained multiple injuries during the arrest, including facial lacerations and head contusions. (Compl. ¶¶ 78). He also claims poor treatment at the Fulton County Jail, including lack of access to legal research materials, medical care, clean and regularly laundered clothing, and cold drinking water. (Id. ¶ 80).

         Harpo seeks an emergency restraining order suspending the execution of a writ of possession on his property. He also asserts over a dozen claims against Deputy Howard and nine other Fulton County Sheriff's Office deputies in their official and individual capacities. These claims include violation of state and federal RICO laws, false arrest, false imprisonment, libel, slander, excessive force, terroristic threats, and “other claims.” (Compl. at Prayer for Relief). He seeks $500, 000 in punitive damages and $2, 000, 000 in damages from Deputy Howard. (Id.).


         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 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).

         B. Analysis

         1. State-Court ...

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