O'Dell v. United States , 256 F. App'x 444 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-6-2007
O'Dell v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3325
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"O'Dell v. USA" (2007). 2007 Decisions. Paper 124.
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ALD-47 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3325
___________
DANNY THOMAS O’DELL,
Appellant
v.
UNITED STATES GOVERNMENT; PHILIP J. BERG
__________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 07-cv-1094)
District Judge: Honorable Eduardo C. Robreno
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary
Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
November 8, 2007
Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges
(Opinion filed: December 6, 2007)
_________
OPINION
_________
PER CURIAM
Danny Thomas O’Dell, proceeding pro se, appeals from the order of the United
States District Court for the Eastern District of Pennsylvania dismissing his case as
1
frivolous. We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2).
On March 1, 2007, O’Dell filed a motion for leave to proceed before the district
court in forma pauperis. He then filed documents entitled “Addendum,” “Notification of
Appeal,” and “Addendum to Appeal,” which stated in the captions that he was
“appeal[ing] from 2:03 cv–05273-er.” Mariani v. U.S.A., the case that O’Dell attempts to
appeal from (although there is no indication that he was involved with that case in any
capacity), concerned claims that the United States government permitted the attacks of
September 11, 2001, and thus caused the death of the Mariani plaintiff’s husband. (See
E.D. Pa. Civ. No. 03-cv-05273.) The District Court dismissed Mariani on April 16, 2004
under Federal Rule of Civil Procedure 41(a). In this case, O’Dell makes allegations
regarding the September 11, 2001 attacks similar to those in Mariani—i.e., that the
attacks resulted from a conspiracy between the United States government and numerous
individuals and corporations.
O’Dell filed a timely notice of appeal to this Court after the District Court
dismissed his case as frivolous in an order entered on July 23, 2007. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and exercise plenary review of the District Court’s legal
conclusions. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Having
granted O’Dell leave to proceed in forma pauperis, we must now determine whether his
appeal should be dismissed as lacking an arguable basis in law or fact pursuant to 28
U.S.C. § 1915. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
2
The District Court correctly dismissed O’Dell’s case, as there is no legal merit to
his cause of action. As the District Court determined, O’Dell appeared to be attempting
to appeal the Mariani case to the same district court that originally dismissed it. This is
obviously improper. And even if O’Dell had standing to appeal from the Mariani
decision (which he likely does not), his appeal would be untimely, and an appeal in that
case was already filed and subsequently dismissed by this Court. See Fed. R. App. P. 4.
Furthermore, if O’Dell is attempting to bring a new cause of action unrelated to Mariani,
his allegations—which run the gamut from political and corporate conspiracy to
CompUSA’s $ 4.99 service plan charge—fail to state any cognizable claims and are
“patently meritless and beyond all hope of redemption.” See Chute v. Walker, 281 F.3d
314, 319 (1st Cir. 2002) (sua sponte dismissal is appropriate where it is clear that the
plaintiff cannot prevail and that any amendment to the complaint would be futile). See
also Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (noting that
dismissal of case without leave to amend is proper when amendment would be futile or
inequitable).
Accordingly, we will dismiss O’Dell’s appeal pursuant to 28 U.S.C. §
1915(e)(2)(B). We deny as moot O’Dell’s request to add parties to the appeal and to
amend the caption.