Credico v. Unknown Official for U.S. Drone Strikes

537 F. App'x 22

• Court: Court of Appeals for the Third Circuit
• Decided: September 26, 2013
• Docket: 13-2403
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Pro se Appellant Justin Michael Credico appeals the District Court’s order dismissing his complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and denying his second motion for reconsideration. 12 His complaint seeks an injunction against the United States’ drone program because the program violates the Eighth Amendment and inflicts emotional distress by “putting one in fear of being drone attacked.” The United States Supreme Court “has repeatedly held that such a ‘generalized grievance,’ no matter how sin cere, is insufficient to confer standing. A litigant ‘raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy.’ ” Hollingsworth v. Perry, — U.S. —, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Accordingly, Credico lacks standing to bring this lawsuit.

A district court should generally give leave to amend prior to dismissing a complaint as frivolous, or make its own determination whether any amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.2002), Although the District Court did not do so here, we are satisfied after reading Credico’s filings in the District Court and on appeal that any amendment would have been futile. Accordingly, we hold that this appeal is frivolous, and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 3

12 . Because Credico's timely appeal from the denial of his motion for reconsideration "brings up the underlying judgment for review,” we will review the District Court’s dismissal of Credico’s complaint as frivolous, as well as its denial of his motion for reconsideration. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 225 n. 6 (3d Cir. 2007).

2. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s decision to dismiss a complaint as frivolous or malicious for abuse of discretion. See Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Having granted Credico leave to proceed in forma pauperis, we must dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). We review the denial of his motion for reconsideration for abuse of discretion. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999).

3 . We conclude that the District Court properly denied Credico's second motion for reconsideration because it did not meet the requirements under Federal Rule of Civil Procedure 59(e). See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.2010) (per curiam) (citation omitted).