                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0373n.06
                               Filed: June 1, 2007

                                               No. 06-2021

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


DELORES EGGERSON, Personal                            )
Representative of the Estate of Leon                  )
Dandredge,                                            )
                                                      )
        Plaintiff-Appellant,                          )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
v.                                                    )    WESTERN DISTRICT OF MICHIGAN
                                                      )
UNITED STATES OF AMERICA,                             )
                                                      )
        Defendant-Appellee.




      Before: DAUGHTREY and GIBBONS, Circuit Judges, and SCHWARZER,* District
Judge.


        PER CURIAM. The plaintiff, Delores Eggerson, appeals from the district court’s

order granting the government’s motion to dismiss this action, brought under the Federal

Tort Claims Act, 28 U.S.C. §§ 2671-2680, for damages arising from the fatal shooting of

Leon Dandredge by Deputy United States Marshal Mark Hessler. Eggerson v. United

States of America, No. 05-594, 2006 WL 1720252 (W.D. Mich. June 22, 2006) (Eggerson

II). The district court’s decision was based on its determination that the current action, filed

a week after the dismissal of Eggerson v. Hessler, No. 04-425, 2005 WL 2035049 (W.D.



        *
          The Hon. W illiam W Schwarzer, United States District Judge for the Northern District of California,
sitting by designation.
No. 06-2021
Eggerson v. Unites States

Mich. Aug. 23, 2005) (Eggerson I), was barred by collateral estoppel. Eggerson I was filed

pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971), and resulted in a ruling that Hessler’s use of deadly force against

Dandredge during an attempt to arrest him was not unreasonable under the circumstances

outlined in the district court’s opinion. The court’s order granting summary judgment to

Hessler was recently affirmed by this court, based on our determination that Hessler’s use

of deadly force was justified as self-defense and was, therefore, reasonable. Eggerson v.

Hessler, No. 05-2333, 2007 WL 579545 at *5 (6th Cir. Feb. 15, 2007) (Eggerson III).


       The plaintiff’s appeal appears to be based on nothing more than mere semantics.

She argues that the first suit was dismissed “because the district court found no

constitutional tort, but . . . made no determination with respect to negligence,” and that the

doctrine of collateral estoppel is, therefore, inapplicable. But this contention is in direct

conflict with the plaintiff’s concession in the district court, as reflected in the district court’s

opinion, “that unless the [district] court change[d] its ruling in [Eggerson I], collateral

estoppel bars her from relitigating the issue of how the shooting occurred.” As the district

court noted, no motion to reconsider the Eggerson I decision was filed in that court, and

we have since approved it. Moreover, the plaintiff’s current attempt to backtrack on her

concession – by arguing, in effect, that the issue in Eggerson I was “intent” while in

Eggerson II it is “negligence” – overlooks the fact that both actions are based on the same

facts and that the finding of reasonableness forecloses liability under both theories of

recovery.

                                               -2-
No. 06-2021
Eggerson v. Unites States

       In short, we find that the appeal in this case borders on the frivolous and, given the

full legal analysis provided by the district court in Eggerson II, we conclude that another

detailed discussion of the case is obviously unnecessary. We therefore AFFIRM the

judgment of the district court for the reasons given in its opinion and order in Eggerson II,

dated June 22, 2006.




                                            -3-
