          Case: 12-15394    Date Filed: 09/16/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-15394
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:12-cv-02395-CAP



CATHLEEN R. GARY,

                                                           Plaintiff-Appellant,

                                  versus

UNITED STATES GOVERNMENT,
PRESIDENT OF THE UNITED STATES OF AMERICA,
in his official capacity,
NATIONAL SECURITY AGENCY/CENTRAL
SECURITY SERVICE,
GENERAL KEITH B. ALEXANDER,
U.S. CENTRAL INTELLIGENCE AGENCY, et al.,

                                                        Defendants-Appellees.

                     ________________________

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

                           (September 16, 2013)
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Before DUBINA, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Cathleen Gary appeals the district court’s sua sponte dismissal of her pro se

civil complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Gary filed a

civil complaint against a number of high-level government officials, including

President Barack Obama and various national intelligence agencies, asserting that

they had implanted microchips into her body that caused tumors and tissue

damage. She alleged that these microchips were used to conduct biomedical

research regarding her reproductive system, to track her movements, and to cause

her pain. She further alleged that the defendants drugged and assaulted her in

order to cover up evidence of her damages, and that these assaults included

invasive surgery, tissue removal, and inserting foreign objects into her body. Gary

sought leave to proceed in forma pauperis (“IFP”), and she also filed a motion for

injunctive relief and a motion for class action certification.

      A magistrate judge issued an order and a report and recommendation

(“R&R”), which granted Gary’s motion to proceed IFP. However, the magistrate

judge determined that Gary’s allegations were “fanciful and delusional” and

recommended dismissing her complaint pursuant to § 1915(e)(B)(i) and (ii) for

frivolity and for failure to state a claim. Gary objected to the R&R, but the district

court adopted the R&R as the order of the court. The court dismissed Gary’s


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complaint as frivolous and dismissed as moot Gary’s motion for an injunction and

motion for class action certification.

       On appeal, Gary asserts that the court abused its discretion in dismissing her

complaint as frivolous because her allegations were not fanciful or removed from

reality, and implantation of electronic devices is an action being litigated in the

court system. She further argues that the court abused its discretion by sua sponte

dismissing her complaint without providing her leave to amend, as she should have

been allowed to cure any deficiencies in her complaint. She also asserts that she

alleged sufficient facts to state a claim for relief. 1

       We review de novo a sua sponte dismissal for failure to state a claim under

§ 1915(e)(2)(B)(ii), and review for abuse of discretion a sua sponte dismissal as

frivolous under § 1915(e)(2)(B)(i). Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th

Cir. 2003). We also review for abuse of discretion denials of leave to amend.

Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir. 2002).

       Section 1915(e)(2) of Title 28 of the U.S. Code states that a claim filed by a

person proceeding in forma pauperis shall be dismissed if the court determines the

action or appeal is frivolous or malicious, or fails to state a claim upon which relief

may be granted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A lawsuit is frivolous if it is

       1
          Gary also makes a passing reference to the district court’s dismissal of her motion for an
injunction and motion for class action certification. Because such passing references are
insufficient to raise an issue on appeal, those claims have been abandoned. See Greenbriar, Ltd.
v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
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“without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528,

531 (11th Cir. 2002) (internal quotation marks omitted). Dismissal for frivolity is

warranted when a claim is based on an indisputably meritless legal theory, or when

it relies on factual allegations that are “clearly baseless,” which includes

allegations that are “fanciful,” “fantastic,” and “delusional.” Denton v. Hernandez,

504 U.S. 25, 32-33, 112 S. Ct. 1728, 1733 (1992) (internal quotation marks

omitted). “[A] finding of factual frivolousness is appropriate when the facts

alleged rise to the level of the irrational or the wholly incredible . . . .” Id. at 33,

112 S. Ct. at 1733.

       We have held that when a more carefully drafted complaint might state a

claim, a plaintiff must be given at least one chance to amend the complaint before

the district court dismisses the action with prejudice. Bank v. Pitt, 928 F.2d 1108,

1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am.

Corp., 314 F.3d 541, 542 & n.1 (11th Cir. 2002) (en banc) (holding that the court

was not required to sua sponte grant leave to amend to counseled plaintiffs who

never requested such leave, but noting that the holding did not disturb a pro se

litigant’s right to amend). Although a pro se litigant generally should be permitted

to amend her complaint, a district court need not allow amendment when it would

be futile. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). “Leave to




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amend a complaint is futile when the complaint as amended would still be properly

dismissed or be immediately subject to summary judgment for the defendant.” Id.

      We conclude from the record that the district court did not abuse its

discretion in dismissing Gary’s complaint as frivolous, as a review of the

complaint shows that her allegations were irrational and wholly incredible.

Furthermore, we conclude that the district court did not abuse its discretion by not

affording Gary an opportunity to amend her complaint because any amendment

would have been futile, as none of Gary’s allegations are credible or rational.

      Accordingly, we affirm the district court’s judgment of dismissal.

      AFFIRMED.




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