Delores EGGERSON, Personal Representative of the Estate of Leon Dandredge, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 225 F. App'x 389

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.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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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, — Fed.Appx.—, —, No. 05-2333, 2007 WL 579545 at *5 (6th Cir. Feb. 15, 2007) (Eggerson III). The plaintiffs 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 plaintiffs 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 estop-pel 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 plaintiffs 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. 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 ease 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.