George McGuire v. Florida Lottery ( 2013 )

Case: 12-15343 Date Filed: 05/30/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15343
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00399-RS-CAS
GEORGE MCGUIRE,
Plaintiff - Appellant,
versus
FLORIDA LOTTERY,
RUBEN MOBLEY,
EVA MOBLEY,
CAROL HALE,
CYNTHIA JENKINS, et al.,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 30, 2013)
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Before CARNES, BARKETT and BLACK, Circuit Judges.
PER CURIAM:
George McGuire, proceeding pro se, appeals the district court’s sua sponte
dismissal of his § 1983 complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). On
appeal, McGuire reasserts the claims in his complaint but makes no arguments that
relate to the district court’s order of dismissal. We liberally construe his pro se
brief to challenge the propriety of that ruling, see Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998), but affirm the district court’s dismissal of
his complaint.1
Section 1915(e) provides that an in forma pauperis action or appeal shall be
dismissed at any time if the court determines that it fails to state a claim for which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Section 1915 further
provides “the court shall dismiss the case at any time if the court determines that
. . . (B) the action or appeal—(i) is frivolous . . .” 28 U.S.C. § 1915(e)(2)(B)(i). A
claim is frivolous if it is without arguable merit either in law or fact. Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993).
To seek relief under 42 U.S.C. § 1983, “a plaintiff must allege facts showing
that the defendant's act or omission, done under color of state law, deprived him
1
We review de novo a district court’s sua sponte dismissal for failure to state a claim pursuant
to § 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true. Hughes v. Lott, 350 F.3d
1157, 1159-60 (11th Cir. 2003). However, we review a district court’s sua sponte dismissal for
frivolity for an abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
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of a right[,] privilege, or immunity protected by the Constitution or laws of the
United States.” Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986)
(quotations omitted). Moreover, “[s]ection 1983 provides a federal forum to
remedy many deprivations of civil liberties, but it does not provide a federal forum
for litigants who seek a remedy against a State for alleged deprivations of civil
liberties. The Eleventh Amendment bars such suits unless the State has waived its
immunity.” Will v. Mich. Dep’t of State Police, 109 S. Ct. 2304, 2309 (1989). A
suit against a state agency is no different than a suit against the state itself, and
“neither a state nor its officials acting in their official capacities are ‘persons’ under
§ 1983.” Id. at 2312.
The district court did not err by dismissing McGuire’s complaint because it
failed to state a claim under federal law and was frivolous. McGuire asserted that
private citizens stole his lottery tickets and profited from them. Alleging theft by
private citizens does not state a constitutional claim under § 1983. Little, 805 F.2d
at 965. The same reasoning applies to McGuire’s claim involving the theft of
precious stones and other valuables by Jamaican gang members. Moreover, the
only non-private party named as a defendant, the “Florida Lottery,” does not
constitute a “person” under § 1983, and enjoys immunity as a state agency
pursuant to the Eleventh Amendment. Will, 109 S. Ct. at 2309, 2312.
Furthermore, McGuire failed to provide an adequate factual basis for his claims,
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and instead relied on conflicting generalizations regarding the theft of
undocumented lottery tickets purchased from unknown locations, at unknown
times. Consequently, McGuire’s complaint lacked arguable merit both in fact and
in law and warranted dismissal for failure to state a claim and frivolity. Thus, after
careful review, we affirm the district court’s dismissal of McGuire’s complaint.2
AFFIRMED.
2
McGuire’s claims are also barred by res judicata because he previously litigated his claims
against the named defendants in three different state courts. Notably, the Second Judicial Circuit
Court of Florida dismissed his case with prejudice on November 3, 2009, thereby constituting a
final adjudication on the merits for res judicata purposes. See Anthony v. Marion County Gen.
Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980) (“[A] dismissal with prejudice is deemed an
adjudication on the merits for the purposes of res judicata.”)
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