Case: 14-14047   Date Filed: 07/16/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14047
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cv-22193-MGC



RANDOLPH H. GUTHRIE, III,

                                                            Plaintiff-Appellant,

                                 versus

U.S. GOVERNMENT, et al.,

                                                                     Defendants,
CITY OF NEW YORK,
CITY OF MIAMI,
BAKER DONNELLSON,
J&J TEQ III, CORP.
ICONBRICKELL MASTER ASSOCIATION, INC., et al.,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (July 16, 2015)
                Case: 14-14047         Date Filed: 07/16/2015        Page: 2 of 10


Before TJOFLAT, WILSON and JULIE CARNES, Circuit Judges.

PER CURIAM:

       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.1 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
       attorneys, landlords, television and internet service providers, social
       media service providers, hospitals, pharmacies, municipalities, mail
       carriers, and others to harm him in various ways. Among other
       things, he alleged that the government and its co-conspirators:

       1
          Guthrie also appeals the district court’s earlier dismissal of several parties for lack of
personal jurisdiction. However, we have already summarily affirmed as to those parties.
                                                  2
             Case: 14-14047     Date Filed: 07/16/2015   Page: 3 of 10


      (1) pressured him to plead guilty to copyright infringement in order to
      protect the Chinese government; (2) scared him and otherwise made
      him uncomfortable while he was incarcerated; (3) inserted undercover
      agents into the prison population where he was incarcerated in order
      to alter his prison environment; (4) injected bacteria under his skin
      while he was sleeping to cause pimples; (5) put bacteria into his ear
      causing an ear infection; (6) poisoned him using a gun that shot
      invisible, painless, and untraceable darts and a “gas distribution
      apparatus” that was covertly installed in his apartment; (7) monitored
      him through video surveillance equipment and access to his medical
      records and social media activity; (8) poisoned and killed his pet
      parrot; (9) defamed him to his mother; (10) manufactured baseless
      criminal charges against him; (11) tampered with his mail; (12)
      prevented him from appealing a federal district court decision; and
      (13) generally annoyed him via loud music from adjoining
      apartments, sporadic interruptions in cable and internet services, and
      rudeness.

      Guthrie filed his original pro se complaint in the Southern District of Florida

on June 12, 2012, but it was dismissed for failing to comply with the one-claim-

per-count requirement of Fed.R.Civ.P. 10(b). Guthrie’s subsequent five amended

complaints likewise were dismissed for the same reason. The district court notified

Guthrie that his sixth amended complaint would be his last opportunity before the

court would dismiss his complaint with prejudice. This sixth amended complaint,

filed on November 15, 2013, alleged 98 counts against the 35 defendants. It

alleged causes of action under the common law, the FTCA and RICO.

      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


                                         3
              Case: 14-14047     Date Filed: 07/16/2015   Page: 4 of 10


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.

      Guthrie filed a timely appeal. On December 17, 2014, the Court issued an

order summarily affirming the district court’s dismissal for lack of personal

jurisdiction with respect to defendants Baker, Donelson, Bearman, Caldwell &

Berkowitz, PC; Clarence Lee Lott III; and Robert E. Hauberg, Jr. We also

summarily affirmed the district court’s dismissal with prejudice of the sixth

amended complaint as it pertained to fourteen defendants, including the United

States.

II.   STANDARDS OF REVIEW

      We apply a de novo standard of review to a district court’s dismissal for lack

of subject matter jurisdiction under Rule 12(b)(1). Barbour v. Haley, 

, 1225 (11th Cir. 2006). We also apply a de novo standard of review to a




                                          4
               Case: 14-14047       Date Filed: 07/16/2015      Page: 5 of 10


district court’s determination of res judicata. E.E.O.C. v. Pemco Aeroplex, Inc.,

, 1285 (11th Cir. 2004).

       A Rule 12(b)(6) dismissal for failure to state a claim is reviewed de novo.

Glover v. Liggett Grp., Inc., 

, 1308 (11th Cir. 2006). We review a

district court’s determination of frivolity for abuse of discretion. Bilal v. Driver,

, 1349 (11th Cir. 2001). “Discretion means that the district court has

a range of choice, and that its decision will not be disturbed as long as it stays

within that range and is not influenced by any mistake of law.” Betty K Agencies,

LTD v. M/V Monada, 

, 1337 (11th Cir. 2005).

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., 

, 623 (11th Cir. 1984) (citing Williamson v. Tucker, 

, 415

(5th Cir.), cert. denied, 

(1981)).2 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.’” 

          In Bonner v. City of Prichard, Ala., this Court adopted as binding precedent those
decisions handed down prior to October 1, 1981 by the Fifth Circuit. 

, 1207 (11th
Cir. 1981). Williamson was decided by this Court on May 20, 1981 and therefore is precedential.


                                              5
                Case: 14-14047         Date Filed: 07/16/2015        Page: 6 of 10


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.

A.       The District Court’s Subject Matter Jurisdiction

         The district court held that dismissal was appropriate because no basis for

subject matter jurisdiction was present. Guthrie had alleged that there was federal

question jurisdiction, diversity jurisdiction, and jurisdiction arising from the fact

that the United States was a defendant. See 28 U.S.C. §§ 1331, 1332, 1346, and

1402. As mentioned, however, we have already dismissed the United States as a

party.

         The district court first noted that there was not complete diversity of

citizenship among the parties, and therefore no jurisdiction under 28 U.S.C.

§ 1332.3 It next pointed out that, of the claims arising under federal law, Guthrie

“has prosecuted these exact claims against almost all of the same defendants

named in this action in two cases filed in the Southern District of New York[.]”

Because those cases were both dismissed on the merits, involved the same parties

and causes of action, Guthrie was barred under the doctrine of res judicata from

bringing the action again. See In re: Piper Aircraft Corp., 

, 1296

         3
          In a supplemental filing in the district court, Guthrie, a Florida resident, alleged that
five of the defendants were either incorporated or headquartered in Florida. Corporations are
citizens of both their state of incorporation and the state in which is located their principle place
of business. 28 U.S.C. 1332(c)(1); see also Fritz v. Am. Home Shield Corp., 

,
1153 (11th Cir. 1985). Thus, the complete diversity of citizenship, required by 28 U.S.C.
§ 1332, was lacking. See Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 

, 1247
(11th Cir. 2005).
                                                  6
              Case: 14-14047     Date Filed: 07/16/2015    Page: 7 of 10


(11th Cir. 2001) (Res judicata requires that “(1) the prior decision must have been

rendered by a court of competent jurisdiction; (2) there must have been a final

judgment on the merits; (3) both cases must involve the same parties or their

privies; and (4) both cases must involve the same causes of action.”) (internal

citations removed).

      On appeal, Guthrie admits that diversity jurisdiction is lacking. As for

federal question jurisdiction, however, Guthrie argues that, although many of the

allegations in his sixth amended complaint were raised and dismissed in the prior

suits, the allegations in Counts 1-5 and 72-98 were not, and that the events

underlying Counts 72-98 all occurred after the filing of those suits. Therefore, res

judicata cannot apply to those claims.

      Counts 1-5 all concern defendants who have been dismissed from this case

pursuant to our December 17, 2014. The allegations in Counts 72-98 do concern

conduct that occurred after the filing of the New York cases, but do not raise any

federal questions, except for Count 98—a civil RICO claim against the United

States—but that party was also dismissed by our December 17, 2014 order. In

short, there is no diversity jurisdiction. As to federal jurisdiction, the only counts

remaining in the complaint that set out a federal question are precluded by the

principle of res judicata. Thus, even assuming federal jurisdiction, Guthrie’s

claims still cannot proceed.


                                           7
              Case: 14-14047     Date Filed: 07/16/2015    Page: 8 of 10


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 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, 

, 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,

, 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., 

, 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


                                           8
              Case: 14-14047     Date Filed: 07/16/2015    Page: 9 

. 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, or experiences in time travel.” 

(Souter, J., dissenting); see also 

(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 a kidney stone.




                                           9
             Case: 14-14047     Date Filed: 07/16/2015    Page: 10 of 10


      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, 

; 

. Accordingly, we affirm.

      AFFIRMED.




                                          10