Eleventh Circuit reaffirms inherent authority to dismiss patently frivolous pro se Bivens claims and confirms abandonment of default arguments raised only in reply

Introduction

This commentary analyzes the Eleventh Circuit’s unpublished, per curiam decision in Lee Michael Tomko v. Bruno Martin, No. 24-13353 (11th Cir. Sept. 25, 2025), affirming the dismissal of a pro se Bivens action as frivolous. The case arises from allegations by plaintiff-appellant Lee Michael Tomko that an FBI agent, “Bruno Martin,” violated his Fourth Amendment rights by hacking his personal electronics, interfering with his investments and employment prospects, and orchestrating harassment and attempts to kill him. The district court dismissed the complaint as frivolous and denied leave to amend; it also rejected Tomko’s efforts to obtain default. On appeal, Tomko argued that the district court (1) applied the wrong standard to his pro se pleading, (2) erred in concluding that the FBI and “Martin” were not in default, and (3) improperly dismissed before discovery.

The Eleventh Circuit affirmed. The court’s disposition is notable for its clear reaffirmation of three doctrines:

A district court’s inherent authority to dismiss suits that are “patently frivolous or vexatious,” so long as the plaintiff has notice and an opportunity to respond.
The narrow scope of factual sufficiency: allegations that are “fanciful, fantastic, or delusional” are “clearly baseless” and may be dismissed as factually frivolous.
Appellate abandonment principles and preservation: issues raised for the first time in a reply brief—here, a default theory—are deemed abandoned absent extraordinary circumstances.

Although unpublished and therefore not binding precedent in the Eleventh Circuit, the opinion distills and applies settled law governing frivolous filings, service on federal officers in Bivens cases, and the limits of discovery in the face of implausible allegations.

Summary of the Opinion

The Eleventh Circuit (Judges Jill Pryor, Brasher, and Anderson) affirmed dismissal of Tomko’s complaint under the district court’s inherent authority to manage its docket and weed out patently frivolous cases:

Standard of review: Dismissal for frivolity is reviewed for abuse of discretion; futility of amendment is reviewed de novo.
Frivolity determination: The panel agreed with the district court that Tomko’s factual allegations—e.g., nationwide coordination by the FBI, the White House, and Congress to hack his devices, manipulate his environment, and signal him via television and restaurant seating—were fanciful and irrational, and thus “clearly baseless.”
Leave to amend: Properly denied as futile; Tomko did not identify any non-fanciful way to cure the defects.
Default arguments: Deemed abandoned because raised only in the reply brief; no extraordinary circumstances warranted revival. In any event, the record showed improper service under Rule 4(i)(3) and a declaration that no “Bruno Martin” worked for the FBI.
Discovery: Dismissal before discovery was proper; the Federal Rules do not “unlock the doors of discovery” for conclusory or frivolous claims.

Analysis

Precedents Cited and How They Shaped the Decision

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971): Tomko styled his claim as a Bivens action under the Fourth Amendment. The panel did not reach the modern, restrictive Bivens expansion analysis; instead, it resolved the case on threshold frivolity and procedural grounds. Still, by noting Bivens, the court situates the claim within the limited context of constitutional tort suits against federal officers in their individual capacities.
McNair v. Johnson, 143 F.4th 1301 (11th Cir. 2025): Cited for the district court’s “inherent authority” to dismiss cases as a means of managing its docket for “orderly and expeditious disposition.” The court relied on McNair to confirm that this authority extends to dismissing patently frivolous suits even outside the PLRA screening context, provided process fairness (notice and opportunity to respond) is observed.
Jefferson Fourteenth Associates v. Wometco de Puerto Rico, Inc., 695 F.2d 524 (11th Cir. 1983): The panel quotes Jefferson for the proposition that a court may dismiss a suit as “patently frivolous or vexatious” so long as the plaintiff has notice and a chance to respond. The record showed Tomko received the government’s motion to dismiss and responded; thus, the procedural preconditions were satisfied.
Denton v. Hernandez, 504 U.S. 25 (1992) and Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001): These decisions set the dividing line between allegations that are merely improbable and those that are “clearly baseless” because they are “fanciful, fantastic, or delusional.” The panel applied Denton/Bilal directly, concluding Tomko’s narrative crossed into the “irrational” and “wholly incredible,” warranting dismissal on factual frivolity grounds.
Miller v. Donald, 541 F.3d 1091 (11th Cir. 2008); Guideone Elite Insurance Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317 (11th Cir. 2005); Ameritas Variable Life Insurance Co. v. Roach, 411 F.3d 1328 (11th Cir. 2005); Rance v. Rocksolid Granite USA, Inc., 583 F.3d 1284 (11th Cir. 2009); United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc): Together, these authorities frame the abuse-of-discretion standard: a district court’s decision within a permissible “range of choice” will be affirmed absent a clear error of judgment or application of the wrong legal standard. The panel found no abuse in the district court’s frivolity determination.
Cockrell v. Sparks, 510 F.3d 1307 (11th Cir. 2007): Establishes that leave to amend is futile if the amended complaint would still be subject to dismissal. Applied to affirm denial of leave because Tomko offered no non-fanciful amendments to cure the defects.
In re Ellingsworth Residential Community Ass’n, Inc., 125 F.4th 1365 (11th Cir. 2025); Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008); United States v. Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc): These cases articulate appellate preservation and abandonment rules. Even for pro se litigants, issues not raised in an opening brief are deemed abandoned and will be revived sua sponte only in “extraordinary circumstances.” Tomko’s default theory was first raised in reply; the court declined to reach it.
Ashcroft v. Iqbal, 556 U.S. 662 (2009): Cited for the principle that pleading standards do not grant discovery to plaintiffs who present only conclusions. The court extended this logic to a frivolity context: when allegations are fantastical, discovery is not a gateway to plausibility.
Federal Rule of Civil Procedure 4(i)(3): Requires service on both the United States and the individual officer when a federal officer is sued in an individual capacity. The district court highlighted Tomko’s failure to serve “Martin” and the U.S. properly. The government also submitted a sworn declaration that no “Bruno Martin” works or has worked at the FBI, underscoring the service and identity problems.

Legal Reasoning

Threshold authority to dismiss as frivolous: The court began by confirming the district court’s inherent authority to dismiss “patently frivolous” suits, provided the plaintiff has notice and an opportunity to respond. Tomko had both: he received the government’s motion and responded with additional assertions. Thus, the procedural predicate for inherent-authority dismissal was satisfied.
Applying Denton/Bilal to the pleaded facts: The panel distinguished between unlikely allegations (which may survive) and “clearly baseless” allegations (which may be dismissed). It found Tomko’s allegations—governmental orchestration of electronic “signals,” restaurant seating patterns as signaling devices, television phrases triggering home A/C, and a nationwide conspiracy to kill him—were “fanciful” and “irrational,” fitting Denton’s and Bilal’s category of “delusional” claims. On that basis, the court held that the district court did not abuse its discretion in dismissing as factually frivolous.
Denial of leave to amend as futile: Under Cockrell, amendment is futile when defects are incurable. The panel noted that Tomko did not identify any concrete, non-fanciful factual amendments that would render his claims plausible; therefore, it affirmed denial of leave.
Default arguments abandoned on appeal: Invoking Timson and Campbell, the panel declined to address Tomko’s default arguments because he raised them for the first time in his reply brief and no “extraordinary circumstances” warranted revival. The court also noted that, even if reached, the default theory would fail because service was deficient under Rule 4(i)(3) and the government’s declaration established that no FBI agent by the defendant’s name exists.
No entitlement to discovery to salvage frivolous claims: Citing Iqbal, the court held that discovery is not a vehicle for plaintiffs to search for facts to make implausible or fantastical allegations plausible. Because the complaint was frivolous, early dismissal was appropriate.

Impact

While unpublished, the decision has practical significance for federal litigation in the Eleventh Circuit:

Early termination of patently frivolous suits: District courts retain robust inherent authority to dismiss factually “delusional” complaints at the pleading stage—beyond statutory screening regimes—so long as due process (notice and chance to respond) is observed. Expect continued use of this tool to conserve judicial resources.
Boundary between improbable and delusional: The opinion underscores that courts must tolerate implausibility but need not entertain claims that cross into the irrational. This threshold is policed by Denton/Bilal and applied here to allegations of nationwide “signaling” conspiracies.
Service on federal officers in Bivens cases: The reminder that Rule 4(i)(3) requires dual service (United States and officer) is a cautionary note for pro se plaintiffs. Mailing a summons to FBI headquarters does not accomplish individual service, particularly when the named officer may not exist.
Appellate preservation discipline for pro se litigants: The panel applies abandonment rules evenhandedly. Arguments confined to a reply brief—such as default—will not be considered absent extraordinary circumstances.
No discovery fishing expeditions: Iqbal’s admonition remains potent: discovery is not unlocked for conclusory or fantastical allegations. Plaintiffs cannot rely on discovery to identify proper defendants or find facts when the initial narrative is delusional on its face.
Futility bar to amendment: Courts need not grant leave to amend where allegations are inherently fanciful and the plaintiff proposes no plausible cure.

Complex Concepts Simplified

Bivens action: A lawsuit seeking damages directly under the U.S. Constitution against federal officers in their individual capacity for certain constitutional violations (here, the Fourth Amendment). The Supreme Court has allowed such suits in limited contexts and has curtailed expansion. Regardless, a Bivens claim must allege plausible, non-frivolous facts and comply with service rules.
Frivolous vs. merely improbable: A claim is “frivolous” if it lacks any arguable legal or factual basis. Allegations are not dismissed for being unlikely; they are dismissed as “factually frivolous” only if “clearly baseless”—i.e., “fanciful, fantastic, or delusional”—such as elaborate conspiracies with irrational signaling and implausible cause-and-effect.
Inherent authority to dismiss: Federal courts can dismiss patently frivolous or vexatious cases to manage their dockets, provided the plaintiff had notice and a chance to respond. This power exists independently of specific statutes.
Abuse of discretion (standard of review): On appeal, the question is not whether the appellate judges would have decided differently, but whether the district court’s decision fell outside a permissible “range of choice” or relied on a wrong legal standard.
Futility of amendment: Courts deny leave to amend when any amendment would still be subject to dismissal. Plaintiffs must articulate how they would cure defects; merely hoping discovery will supply facts is insufficient.
Service on federal officers (Rule 4(i)(3)): Suing a federal officer in an individual capacity requires serving both the United States (U.S. Attorney and Attorney General) and the officer personally. Service on an agency headquarters alone is not enough.
Default and preservation on appeal: Default requires proper service and missed response deadlines. On appeal, arguments must appear in the opening brief; raising them only in reply generally forfeits review.
No discovery for conclusory claims (Iqbal): Plaintiffs are not entitled to discovery based solely on conclusions or fantasy; pleadings must cross a threshold of plausibility and factual sufficiency before discovery begins.

Conclusion

Tomko v. Martin is a clear application of settled principles to a pro se Bivens complaint that the court deemed “fanciful” and “irrational.” The Eleventh Circuit affirmed dismissal under the district court’s inherent authority, emphasizing that courts may jettison patently frivolous suits at the threshold after providing notice and an opportunity to respond. The panel also reinforced rigorous appellate preservation rules by refusing to entertain a default argument raised only in reply, and it reminded litigants of the dual-service requirement for individual-capacity claims against federal officers under Rule 4(i)(3). Finally, the court underscored that discovery is not a mechanism to transform delusional allegations into plausible claims. The decision thus synthesizes and applies core doctrines—frivolity, futility, service, and appellate abandonment—that protect judicial resources while preserving fairness, and it offers practical guidance for both courts and litigants confronting extraordinary factual claims.