Case: 14-10498   Date Filed: 04/15/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-10498
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 5:13-cv-02350-CLS



DEANDRE RUSSELL,

                                                            Plaintiff-Appellant,

                                    versus

REDSTONE FEDERAL CREDIT UNION,
C. HOWARD GRISHAM,
Attorneys and Collection Agency,
JEFFERY L. COOK,
Attorneys and Collection Agency,
JOHN LARSEN, Bankrupt Counsel,
PHILLIP A. GEDDES, Bankruptcy Trustee, et al.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                               (April 15, 2015)
               Case: 14-10498     Date Filed: 04/15/2015    Page: 2 of 4


Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      DeAndre Russell, proceeding pro se, appeals from the district court’s sua

sponte dismissal of his civil complaint for failure to state a claim for relief. As

brief relevant background, in 1996 and 1997, Redstone Federal Credit Union

(“Redstone”) obtained state-court default judgments against Russell. In his

complaint, Russell asserted that, in 2011, he had initiated a bankruptcy proceeding

in the U.S. Bankruptcy Court for the Northern District of Alabama after Redstone

and its collections agents, C. Howard Grisham and Jeffery L. Cook, had forced him

into bankruptcy based on the 1996 and 1997 state-court judgments. Russell’s

complaint then alleged claims of (1) fraud by concealment, in violation of Ala.

Code § 6-2-3; (2) fraud by deception; (3) excessive attorney fees at default; (4)

“Truth in Lending”; (5) Regulation Z, 12 C.F.R. § 226.6; (6) the Federal Trade

Commission’s “FTC-5 A of the UNFAIR DECEPTIVE ACTS AND

PRACTICES”; (7) the Fair Debt Collection Practices Act (“FDCPA”); and (8) the

Truth in Lending Act (“TILA”) against Redstone, Grisham, and Cook, based on

how they obtained the 1996 and 1997 state-court judgments. Russell also alleged

claims of negligence and breach of fiduciary duty against Philip A. Geddes, the

bankruptcy trustee in the 2011 bankruptcy proceeding, and Scott Michael Ford, the

counsel for the bankruptcy trustee. Russell further alleged claims of negligence


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against John and Melissa Larsen, his attorneys in the 2011 bankruptcy proceeding.

The district court dismissed the complaint against all defendants as barred by res

judicata. While the case was pending, Russell moved for “preliminary injunctive

relief” to stop the foreclosure of his home, and the court denied the motion as

moot.

        On appeal, Russell first argues that the district court improperly dismissed

his complaint on grounds of res judicata because: (1) in 2011, the bankruptcy court

had not mentioned his allegations of fraud or his conflict with the Larsens; (2) he

had not previously litigated in state court his fraud claim and other issues raised in

the instant complaint; (3) the doctrine of res judicata only bars claims that could

have been litigated when the unlitigated claims were for “insignificant matters”;

and (4) res judicata does not bar unlitigated claims involving “fraud, willful and

malicious injury to a party, etc.,” because doing so would make the courts a

participant in the fraud. Second, he argues that the district court should not have

denied his motion for an injunction. Third, Russell argues that he is entitled to the

costs of this appeal.

        The district court dismissed Russell’s complaint sua sponte on res judicata

grounds after denying him in forma pauperis status. 1 In Jefferson Fourteenth

Associates. v. Wometco de Puerto Rico, Inc. 

(11th Cir. 1983), we

1
         Had the court granted IFP status, it could have reviewed the complaint for frivolity,
failure to state a claim, etc., under 28 U.S.C. § 1915(e)(2)(B)(ii).
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specifically prohibited a sua sponte dismissal in the following circumstances: (1)

the defendant had not filed an answer and, thus, the plaintiff still had a right under

Fed.R.Civ.P. 15(a) to amend the complaint; (2) the plaintiff's claim was brought in

good faith and was not vexatious or patently frivolous; and (3) the district court

had provided the plaintiff with neither notice of its intent to dismiss the complaint

nor an opportunity to respond. 

While Russell’s case is arguably barred

by res judicata, the district court lacked authority to dismiss without following the

proper procedure. Therefore, we vacate and remand for the court to give Russell

notice of its intention to dismiss and to allow him an opportunity to respond.



VACATED and REMANDED.




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