                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"O'Dell v. USA" (2007). 2007 Decisions. Paper 124.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/124


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ALD-47                                                  NOT PRECEDENTIAL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.
