Edgina T. Hendrix Smith v. JP Morgan Chase

Opinion

USCA11 Case: 20-12566 Date Filed: 02/24/2021 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12566 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cv-01980-SDG

EDGINA T. HENDRIX SMITH,

Plaintiff-Appellant,

versus

JP MORGAN CHASE, BANK OF AMERICA, N.A.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(February 24, 2021)

Before JORDAN, GRANT, and BLACK , Circuit Judges.

PER CURIAM: USCA11 Case: 20-12566 Date Filed: 02/24/2021 Page: 2 of 4

Edgina Smith, proceeding pro se, appeals the district court’s sua sponte

dismissal of her complaint for failure to state a claim. She asserts (1) the district

court judge was biased, unfair, and violated her constitutional rights and (2) that

her claims were meritorious. After review,1 we affirm the district court.

As to bias, Smith merely argues the district judge “appear[ed] to be bias[ed]

and unfair” based on the fact that he dismissed another one of her cases. In

addition to raising this issue for the first time on appeal, she has failed to

adequately argue the district judge was biased because her assertion that she does

“not trust [his] credibility and character” is conclusory and lacks supporting

arguments or authority. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,

681 (11th Cir. 2014) (stating a party fails to adequately brief an issue when she

raises it in a perfunctory manner, without supporting arguments and authority);

Finnegan v. Comm’r of Internal Revenue, 926 F.3d 1261, 1271 (11th Cir. 2019)

(stating this Court generally will not consider an issue raised for the first time on

appeal). Even assuming the issue is not waived, Smith has pointed to no

1 We review de novo a district court’s dismissal of an in forma pauperis (IFP) complaint for failure to state a claim under section 1915. Bilal v. Driver, 251 F.3d 1346, 1348-49 (11th Cir. 2001). Section 1915(e) provides, inter alia, that any IFP action or appeal shall be dismissed at any time if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B). However, we will hold a pro se pleading to a less stringent standard than a counseled pleading. Erickson v. Pardus, 551 U.S. 89, 94 (2007). We review de novo a denial of leave to amend based on futility because futility is a legal conclusion. Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1093-94 (11th Cir. 2017). We also review de novo the issue of whether a statute impliedly creates a private right of action. Love v. Delta Air Lines, 310 F.3d 1347, 1351 (11th Cir. 2002). 2 USCA11 Case: 20-12566 Date Filed: 02/24/2021 Page: 3 of 4

supporting evidence that the district judge harbored bias against her or had a

conflict of interest, and the record shows none. See 28 U.S.C. § 455(a) (providing

a district judge must recuse himself whenever his impartiality in a proceeding

might reasonably be questioned). The district court judge merely ruled against her.

As to the merit of Smith’s claims, the district court did not err in concluding

Smith failed to allege sufficient facts to state a claim for relief. First, the district

court did not err in dismissing Smith’s complaint for failure to state a claim

because the Federal Trade Commission Act (FTCA) and criminal statutes do not

create private causes of action. A private right of action does not exist under the

FTCA, meaning Smith’s allegation that the bank defendants violated the FTCA is

futile because she can bring no action under the FTCA. See Jeter v. Credit

Bureau, Inc., 760 F.2d 1168, 1174 n.5 (11th Cir. 1985) (recognizing that a private

right of action does not exist under the FTCA); accord Roberts v. Cameron-Brown

Co., 556 F.2d 356, 361 n.6 (5th Cir. 1977). Further, this Court has concluded that

criminal statutes do not provide for private civil causes of action, so it follows that

Smith’s Title 18 allegations are also without merit because those criminal statutes

do not provide for private causes of action. See Love v. Delta Air Lines, 310 F.3d

1347, 1352-53 (11th Cir. 2002) (explaining that criminal statutes do not provide

for private civil causes of action).

3 USCA11 Case: 20-12566 Date Filed: 02/24/2021 Page: 4 of 4

Additionally, the district court did not err in denying Smith leave to amend

her complaint and concluding that any amendment would have been futile because

she could not have alleged different facts to state a claim under these statutes that

do not provide private rights of action. See Woldeab v. DeKalb Cty. Bd. of Educ.,

885 F.3d 1289, 1291 (11th Cir. 2018) (stating while a district court should grant a

plaintiff an opportunity to amend her complaint rather than dismiss it when a more

carefully drafted complaint may state a claim upon which relief could be granted, a

court need not grant leave to amend if a more carefully drafted complaint could not

state a claim).

AFFIRMED.