United States District Court, N.D. Alabama, Southern Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE
case is before the court on a preliminary review of
Plaintiff's Complaint (Doc. # 1) and Plaintiff's
December 4, 2017 filing (Doc. # 8), which the court liberally
construes as an Amended Complaint. In his October 30, 2017
Order to Amend (Doc. # 4), the Magistrate Judge concluded
that Plaintiff's original Complaint failed to provide a
statutory basis for the court's jurisdiction or to
plausibly state a claim for relief. (Id. at 2-3).
The Magistrate Judge ordered Plaintiff to file an Amended
Complaint (id. at 3-4), and the undersigned directed
Plaintiff to comply with the Magistrate Judge's
directions for amending the complaint. (Doc. # 7).
Accordingly, the court has granted Plaintiff a full and fair
opportunity to amend his pleadings, and Plaintiff's
pleadings in this case are ripe for a preliminary review.
See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001) (“Generally, where 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.”) (internal
quotations marks and alterations omitted).
actions where a plaintiff has been granted in forma
pauperis status, the court is obligated to dismiss the
action if it is frivolous, malicious, or fails to state a
claim for relief. 28 U.S.C. § 1915(e)(2)(B)(i) &
(ii). An action is frivolous if (1) a plaintiff's factual
allegations are “clearly baseless” or (2) a
plaintiff's legal theory of relief is “indisputably
meritless.” Smith v. Hildebrand, 244 F.
App'x 288, 290 (11th Cir. 2007) (quoting Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993)). In
determining whether a complaint is frivolous, the court
possesses “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)).
“[W]ildly implausible allegations in the complaint
should not be taken to be true[.]” Id.
court conducts the review required by 28 U.S.C. §
1915(e)(2)(B)(ii) using the standards applied to motions
under Federal Rule of Civil Procedure 12(b)(6). Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). To
survive a Rule 12(b)(6) motion, a complaint must “state
a claim to relief that is plausible on its face.”
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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability
requirement, '” the complaint must demonstrate
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence” to
support the claim. Twombly, 550 U.S. at 556. In
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Canfield,
Paddock & Stone, PLC, 413 F. App'x 136, 138
(11th Cir. 2011) (unpublished) (quoting Am. Dental
Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
asserts that this court's subject-matter jurisdiction is
premised upon a constitutional or federal question in this
case, but he has cited no federal statute, treaty, or
provision of the Constitution that supports his claims. (Doc.
# 1 at 3). (See generally Doc. # 8). Therefore, as
an initial matter, this action is due to be dismissed without
prejudice for lack of subject-matter jurisdiction. See
Andrews v. Hotel Reed Nursing Home, 167 F.Supp.2d 1333,
1339 (S.D. Ala. 2001) (concluding that a plaintiff's
complaint did not establish federal question jurisdiction
because the plaintiff did not identify the federal statute or
constitutional provision under which the claims arose).
the court finds that Plaintiff has presented frivolous claims
over which the court lacks jurisdiction. “Under Rule
12(b)(1), federal courts lack jurisdiction over claims that
are ‘so attenuated and unsubstantial as to be
absolutely devoid of merit.'” Moore v.
Bush, 535 F.Supp.2d 46, 48 (D.D.C. 2008) (quoting
Hagans v. Lavine, 415 U.S. 528, 536 (1974),
aff'd, 2009 WL 4250626 (D.C. Cir. 2009). In his
initial Complaint, Plaintiff alleges that Defendant Dr. Ocore
operated on him without permission and installed a microchip
that can “govern [his] life.” (Doc. # 1 at 4). He
also alleges that Defendant UAB Hospital provided facilities
for the alleged implantation. (Id.). Several courts
have ruled that claims of microchip implantation are
baseless, fundamentally incredible, and frivolous. Grady
v. U.S. Gov't, 702 F. App'x 929, 930-31 (11th
Cir. 2017) (affirming dismissal of claim concerning microchip
implantation under Rule 12(b)(1) and Hagans);
Moore, 535 F.Supp.2d at 48; Simmons v.
Beard, 2013 WL 2147811, at *3 (M.D. Pa. May 16, 2013).
Consistent with these opinions, the court concludes here that
Plaintiffs claim concerning microchip implantation is due to
be dismissed as insubstantial and frivolous. Grady,
702 F. App'x at 930-31.
also complains that Defendant Ocore and several other doctors
refused to see him or set up an appointment for him. (Doc. #
8). However, Plaintiff has failed to identify which law
Defendant Ocore violated by refusing to provide him services,
and the court cannot determine from the allegations in the
amended pleading that any alleged refusal presents a
colorable legal claim. Therefore, Plaintiffs claim in the
Amended Complaint is due to be dismissed without prejudice
for failure to state a claim for relief.
these reasons, this action is due to be dismissed for lack of
subject-matter jurisdiction, for frivolity, and for failure
to state a claim. 28 U.S.C. § 1915(e)(2)(B)(i) &
(ii); Fed.R.Civ.P. 12(h)(3). An ...