Van S. Jenkins v. Randy A. Fernandez ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
__________________________ August 29, 2005
THOMAS K. KAHN
No. 04-12849 CLERK
Non-Argument Calendar
__________________________
D.C. Docket No. 03-23017-CV-JEM
VAN S. JENKINS,
Plaintiff-Appellant,
versus
RANDY A. FERNANDEZ, Vice President,
ELAINE FITZGERALD, Public Relations Officer,
NATIONAL REGISTERED AGENTS, INC.,
CORPORATE CREATIONS INTERNATIONAL, INC.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 29, 2005)
Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Van S. Jenkins, a pro se Michigan prisoner, appeals the
district court’s order sua sponte dismissing his complaint both as frivolous, 28
U.S.C. § 28 U.S.C. § 1915(e)(2)(B)(i), and for failing to state a claim upon which
relief may be granted, 28 U.S.C. § 1915(e)(2)(B)(ii). No reversible error has been
shown; we affirm.
Plaintiff’s complaint alleged claims against Corporate Creations
International, Inc. (“CCI”), a Florida corporation that allegedly provides patent,
trademark, and incorporating services; Randy Fernandez, a vice president at CCI;
Elaine Fitzgerald, allegedly a public relations officer for a CCI subsidiary; and
National Registered Agents, Inc. (“NRA”), a subsidiary of CCI. Plaintiff’s
complaint is confusing. But he seemingly claimed that he provided CCI with an
American Express credit card account, from which CCI withdrew $350 for a
trademark search on “The Egyptian Caballero Research Enlightenment
Association”, a “fraternal corporation” that Plaintiff wished to establish. Plaintiff
supposedly submitted a durable power of attorney to NRA. Citing the Uniform
Commercial Code § 4-402, Plaintiff asserted that “[f]ailure of a payor bank to
disburse monetary proceeds may cause a Due Process [sic] of the Federal
Trademark and Patent Application process, where [CCI’s] licensed Attorney
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prepares the Federal Trademark/Patent Application.” Plaintiff also suggested that,
to set up his fraternal corporation, he needed to receive a patent and trademark so
that he could obtain a coat of arms from heraldic authorities in England and
Scotland. Plaintiff then discussed secret societies and freemasonry.
It appears that Plaintiff claimed he did not receive the incorporating services
from CCI for which he allegedly paid. Plaintiff sought injunctive relief because
the patent and trademark statutes protected the “secret knowledge” of his fraternal
corporation: he wished Defendants restrained from “not executing or enforcing
said statutes in so far as it applies to Petitioner, this includes the Contractual
Agreement.”
We affirm the district court’s dismissal of Plaintiff’s complaint as frivolous.
We review for an abuse of discretion frivolity dismissals under 28 U.S.C.
§ 1915(e)(2)(b)(i). See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). “A
claim is frivolous if it is without arguable merit either in law or fact.” Id. “A
determination of frivolity is best left to the district court”; we recognize that
“district judges remain more familiar with and are more experienced to recognize
potentially frivolous claims, . . .” Id.We uphold the district court’s dismissal of Plaintiff’s complaint. Plaintiff
asserts that he paid $350 to CCI for incorporation services he has not received.
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But he provided no allegation of a contract binding CCI to perform these services
for him. And as the district court noted, the CCI invoice with this alleged charge
shows a credit card number that does not match the account numbers on Plaintiff’s
credit report.1 Plaintiff suggests that banks and financial institutions are at fault
for failing to pay for the incorporation services; but this implies that Plaintiff has
not yet paid for the services from CCI that he allegedly has not received.
The district court harbored a reasonable doubt of Plaintiff’s factual
allegations; and a “minimal likelihood [exists] that Plaintiff stated a claim at all.”
See Bilal, 251 F.3d at 1350. We cannot say that the district court abused its
discretion in dismissing Plaintiff’s complaint as frivolous.2
AFFIRMED.
1
Plaintiff attached the invoice and the credit report to his complaint: the district court properly
could consider these documents in dismissing Plaintiff’s complaint without converting the
proceedings to summary judgment. See Fed.R.Civ.P. 10(c) (stating that “[a] copy of any written
instrument which is an exhibit to a pleading is a part thereof for all purposes”); Taylor v. Appelton,
30 F.3d 1365, 1367 n.3 (11th Cir. 1994).
2
Because we uphold the district court’s frivolity determination, we need not address the
correctness of the district court’s alternate ground for dismissal: that Plaintiff’s complaint failed to
state a claim, under 28 U.S.C. § 1915(e)(2)(B)(ii). Also, Plaintiff argues for the first time on appeal
that he was deprived of his constitutional rights to assemble and “to have his respective Science,
Arts, Writings and Discoveries secured.” We do not consider these claims. See Wright v. Hanna
Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001) (stating that courts of appeal generally do not
consider an issue not raised in the district court). And we reject without discussion Plaintiff’s
arguments that the district court should have held a hearing, should have required Defendants to
respond to his discovery requests, and that his due process rights somehow were violated.
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