Barber v. Internal Revenue Serv.

• Decision Date: 05 May 2017
• Docket Number: CV-17-BE-284-S
• Parties: DONALD JOE BARBER Plaintiff, v. INTERNAL REVENUE SERVICE, et. al. Defendants.
• Court: U.S. District Court — Northern District of Alabama

DONALD JOE BARBER Plaintiff, v. INTERNAL REVENUE SERVICE, et. al. Defendants.

CV-17-BE-284-S

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 5, 2017

MEMORANDUM OPINION

This matter is before the court on Plaintiff Donald Joe Barber's "Motion to Proceed in Forma Pauperis." (Doc. 2). The court WILL GRANT Mr. Barber's motion, even though it is not submitted on the form used by the court and does not contain all the information required to evaluate his financial condition. But doing so this time does not mean that this—or any other—judge will accept an inadequate in forma pauperis application next time.

In making a determination of whether a plaintiff qualifies as a pauper "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid," the court must dismiss a case "if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Thus, the court has an obligation to review sua sponte the merits of in forma pauperis matters.

In determining whether an in forma pauperis complaint is frivolous, the court is not required to accept without question the truth of the plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Instead, the court must view the allegations only as "weighted in favor of the plaintiff." Id. at 32. Pursuant to § 1915(e)(2)(B)(i), the court possesses "not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989); see also Ghee v. Retailers Nat'l Bank, 271 F. App'x. 858, 859 (11th Cir. 2008) (per curiam) (stating that "an IFP action is frivolous, and thus not brought in good faith, if it is without arguable merit either in law or fact" and that the term "arguable means capable of being convincingly argued" (internal citations omitted)).

Having examined the Complaint, the motion, and the previous Complaints that Mr. Barber filed in Case No. 16-CV-1321-MHH and Case No. 11-CV-1581-MEF, as well as the Memorandum Opinions and Orders filed in those cases, the court finds that this case is due to be DISMISSED for the reasons stated below.

Claims to be Dismissed for Lack of Jurisdiction

Mr. Barber brings this tax protest case against the Internal Revenue Service, IRS officials, and the acting Assistant Regional Commissioner of the Social Security Administration. In many of the claims in this case, Mr. Barber seeks to enforce criminal statues against the Defendants. However, "[a] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Morales v. U.S. Dist. Court, 580 F. App'x 881, 887 (11th Cir. 2014) (per curiam) (finding that private citizen lacked standing to petition for mandamus compelling presentation of evidence to aspecial grand jury because the federal statute on grand jury powers and duties did not create a private right of action, and because "a private citizen's interest in the . . . criminal prosecution of another person is not a judicially cognizable interest for standing purposes."); Otero v. U.S. Attorney Gen., 832 F.2d 141 (11th Cir. 1987) (per curiam) (affirming the dismissal of a citizen's petition for writ of mandamus to compel prosecution of a former state attorney, finding that "a private citizen has no judicially cognizable interest in the prosecution . . . of another."). The right to prosecute anyone for criminal conduct rests with the state and/or federal government, not with a "private man," a "state American national and noncombatant," a "Citizen of the Republic states" (doc. 1, at 1 & 3), or however else a non-governmental private person or individual chooses to describe himself. See, e.g., Diamond v. Charles, 476 U.S. 54, 65 (1986) (finding a lack of standing to address a state statute when the state government itself was not part of the appeal; "[b]ecause the State alone is entitled to create a legal code, only the State has the kind of 'direct stake' identified in Sierra Club v. Morton, 405 U.S. [727, 740 (1972)] in defending the standards embodied in that code."). Consequently, Mr. Barber does not have standing to bring criminal claims.

Because Mr. Barber lacks standing to bring criminal claims, this court lacks jurisdiction over those particular claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992). The court FINDS that the claims in the following counts are due to be DISMISSED because Mr. Barber is improperly seeking to enforce criminal statutes against the Defendants: Count One, asserting that the respondents have committed what he characterizes as the crimes of "personage" and "knowingly misrepresenting a living man or woman"; Count Two, asserting the "crime of barratry . . . of knowingly bringing false claims and charges based on personage in order to useforeign statutory law against living people"; Count Four, asserting that "the respondents are guilty of inland piracy"; Count Five, to the extent, if any, that he is alleging criminal conversion: the count does not specify whether he is alleging conversion as a tort or a crime; Count Six, to the extent, if any, that he is alleging identity theft as a crime: he asserts that "respondents are guilty of identity theft by stealing the identity of the petitioners . . . for the purpose of plundering the petitioners"; Count Eight, asserting the crime of theft; Count Fourteen, asserting the crime of peonage, and violations of criminal statutes 18 U.S.C. §1581 and 42 U.S.C. §1994; Count Fifteen, asserting the crime of "enticement into slavery" in violation of 18 U.S.C. §1583; Count Sixteen, asserting criminal conspiracy in violation of 18 U.S.C. § 241; Count Seventeen, asserting that the respondents are guilty of the crimes of robbery and racketeering and extortion in violation of 18 U.S.C. § 1951; Count Eighteen, asserting that the respondents are guilty of the crime of deprivation of rights under color of law, violating 18 U.S.C. § 242; and Count Twenty-Three, to the extent, if any, that he is pursuing criminal sanctions under the RICO Act.

Because this court FINDS that these claims are due to be DISMISSED for lack of jurisdiction, it WILL DISMISS WITHOUT PREJUDICE those claims, sua sponte. The dismissal without prejudice is not an invitation to re-plead, because any criminal claim brought by Mr. Barber would be futile. The "without prejudice" merely acknowledges that, because Mr. Barber lacks standing to bring those claims, this court has no jurisdiction to enter a dismissal on the merits, and thus, cannot enter a dismissal with prejudice. See Stalley v. Orlando Reg'l Healthcare Sys., 524 F.3d 1229, 1232 (11th Cir. 2008) ("A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is entered without prejudice."). Accordingly, the court will not give Mr. Barber leave to amend his Complaint alleging these criminal claims.

Claims to be Dismissed on Other Grounds

Claims Brought on behalf of "'We the People' of the republic states"

The court notes that Mr. Barber, a pro se litigant, who is not an attorney licensed to practice law in Alabama or in this court, purports to bring this suit on behalf of "All of 'We the People' of the republic states." (Doc. 1). Although, pursuant to 28 U.S.C. § 1654, a pro se plaintiff may "plead and conduct" his own claims in federal court, that personal right does not extend to representing the claims and interests of others. See Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008) (holding individual could not bring a qui tam suit as a pro se relator; interpreting 28 U.S.C. § 1654 as providing a personal right but not a right to represent others; and quoting with approval Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1127 (9th Cir. 2007): "the established procedure which required that only one licensed to practice law may conduct proceedings in court for anyone other than himself."). The principle is well established that a pro se plaintiff cannot represent others or bring class claims. See, e.g., Lawrence v. Sec'y of State, 467 F. App'x 523, 525 (7th Cir. 2012); Blue v. Defense Logistics Agency, 181 F. App'x. 272, 275 (3rd Cir. 2006); Lescs v. Martinsburg Police Dep't, 138 F. App'x. 562, 564 (4th Cir. 2005) (per curiam); Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000); C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987); see also Wallace v. Smith, 145 F. App'x. 300, 302 (11th Cir. 2005) ("[I]t is plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.") (citation and internal quotation marks omitted); 1 NEWBERG ON CLASS ACTIONS § 3:24 ("[M]ost courts have held that pro se plaintiffs are inadequate representatives of a class.").

To maintain an action as a class action, litigants must meet the requirement that"representative parties will fairly and adequately protect the interests of the class." FED. R. CIV. P. 23(a)(4). The ability to protect the interests of the class depends, at least in part, on the quality of legal counsel, and, except in rare cases, the competence of a layman is "clearly too limited to allow him to risk the rights of others." Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (citing as support two cases from the former Fifth Circuit: Gonzales v. Cassidy, 474 F.2d 67 (5th Cir. 1973) and Anderson v. Moore, 372 F.2d 747, 751 n.5 (5th Cir. 1967)).¹

Therefore, this court FINDS that all claims that Mr. Barber improperly asserts on behalf of others are due to be DISMISSED WITHOUT PREJUDICE.

Claims...