Bey v. Bredesen
| Decision Date | 06 December 2010 |
| Docket Number | No. 10-2217-STA-cgc,10-2217-STA-cgc |
| Parties | TERRY:LAWRENCE-BENSON EL BEY, et al., Plaintiffs, v. PHIL BREDESEN, et al., Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
On March 29, 2010, Plaintiffs Terry: Lawrence-Benson El Bey, Latosha-Latice: Williams El, and Marico-Deshun: Taylor El, 1 residents of Memphis, Tennessee, filed a pro se civil complaint against Tennessee Governor Phil Bredeson and City of Memphis Mayor AC Wharton. Plaintiff paid the civil filing fee.
Plaintiffs complaint alleges that they have been stopped, detained, searched, and arrested by Memphis police officers despite their "right to travel unencumbered and unmolested" as "aboriginal Washitaw Moorish Missionaries aboriginal to the Land North America, North Gate Amexem, perpetual travelers in the United States of America Republic, currently in city called Memphis, county called Shelby, state called Tennessee." (D.E. 1 at 2, 4.) They contend they are Jurist Missionaries of the Native Olmec Anasazi Almorocan Heritage ("NOAAH") Law Research Institute. (D.E. 1 at 1.) Plaintiffs seek gold and silver bars and expungement of any arrest records. (D.E. 1 at 9.)
Plaintiff's complaint is a pro se complaint subject to screening under 28 U.S.C. § 1915(e)(2), 2 which provides:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(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); see also 28 U.S.C. § 1915A(b).
This District Court has issued an administrative order establishing a policy for the Clerk to follow in implementing § 1915(e)(2). That policy provides, in part, that it is:
ORDERED that service not be issued upon the filing of a non-prisoner pro se complaint, pending review of the complaint's merit under 28 U.S.C. § 1915(e)(2). Section1915(e)(2) provides that whether or not a filing fee is paid, the court shall dismiss a case at any time upon the court's determination that any of the § 1915(e)(2) provisions are met.
Administrative Order No. 98-10. Therefore, screening of pro se complaints must occur before process issues. No process was issued in the case despite the answer filed by Defendant Wharton. Accordingly, Plaintiff's request for default is DENIED. Plaintiff's motion for summary judgment is also DENIED as premature. (D.E. 12.)
According to the Sixth Circuit, "a district court may not sua sponte dismiss a complaint where the filing fee has been paid unless the court gives the plaintiff the opportunity to amend the complaint." Apple v. Glenn, 183 F.3d 477, 478 (6th Cir. 1999) (per curiam); see also Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999); Tingler v. Marshall, 716 F.2d 1109, 1112 (6th Cir. 1983). An exception to this general rule permits a district court to dismiss a complaint "for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion." Apple, 183 F.3d at 478 (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)).
The fact that a litigant is proceeding pro se or is a prisoner do not absolve him from the requirements of the Federal Rules of Civil Procedure. As the Sixth Circuit has explained:
Before the recent onslaught of pro se prisoner suits, the Supreme Court suggested that pro se complaints are to be held to a less stringent standard than formalpleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519... (1972) (per curiam). Neither that Court nor other courts, however, have been willing to abrogate basic pleading essentials in pro se suits. See, e.g., id. at 521... ( petitioner to standards of Conley v. Gibson); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.) (), cert. denied, 464 U.S. 986... (1983); McDonald v. Hall, 610 F.2d 16 (1st Cir.1979) (same); Jarrell v. Tisch, 656 F. Supp. 237 (D.D.C. 1987) (); Holsey v. Collins, 90 F.R.D. 122 (D. Md. 1981) ().
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Lindsay v. Owens Loan, No. 08-CV-12526, 2008 WL 2795944, at *1 (E.D. Mich. July 18, 2008) (); Reeves v. Ratliff, No. Civ.A.05CV112-HRW, 2005 WL 1719970, at *2 (E.D. Ky. July 21, 2005) (); United States v. Kraljevich, No. 02-40316, 2004 WL 1192442, at *3 (E.D. Mich. Apr. 15, 2004); Payne v. Secretary of Treas., 73 F. App'x 836, 837 (6th Cir. 2003) (); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants.").
The first issue is whether this Court has subject-matter jurisdiction over this action. Federal courts are courts of limited jurisdiction. Finley v. United States, 490 U.S. 545, 547-48 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976); Stillman v. Combe, 197 U.S. 436 (1905); Turner v. Bank of N. Am., 4 U.S. 8, 10 (1799). Federal courts are obliged to act sua sponte whenever a question concerning jurisdiction arises. See, e.g., St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 287 n.10 (1938); Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181 (7th Cir. 1989) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3522 at 70 (1984). "[Fed. R. Civ. P.l 12(h)(3) provides that a court shall dismiss an action '[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter.'" Id.
Pursuant to Rule 8(a)(1) of the Federal Rules of Civil Procedure, "[a] pleading that states a claim for relief must contain... a short and plain statement of the grounds for the court's jurisdiction." Plaintiffs invoke federal question jurisdiction as the source of jurisdiction for their claims. Plaintiffs cite: 28 U.S.C. § 1331, which grants the federal courts jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States and 28 U.S.C. § 1343, by which they presumably mean 28 U.S.C. § 1343(a)(3), which gives federal courts jurisdiction over actions
[t]o redress the deprivation, under color of any state law, statute, ordinance, regulation, custom, or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any Act ofCongress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.3
Plaintiffs also rely on 18 U.S.C. §§ 241 and 242, which are federal criminal statutes. In general, criminal statutes do not give rise to a private cause of action and cannot be a basis for a private civil action. Walker v. Hastings, Civil No. 0 9-CV-07 4-ART, 2009 WL 2914402, at *4 (E.D. Ky. Sept. 4, 2009). There is no private right of action under 18 U.S.C. §§ 241 and 242. United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir. 2003); Moore v. Potter, 47 F. App'x 318, 320 (6th Cir. 2002); Duncan v. Cone, No. 00-5705, 2000 WL 1828089, at *1 (6th Cir. Dec. 7, 2000).
Even if it were proven that Plaintiffs' civil rights were violated, it does not follow that Governor Bredesen or Mayor Wharton would be liable for the violations. Under 42 U.S.C. § 1983, "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, 12 9 S. Ct. at 1948; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, "a plaintiff must plead that each Government-official defendant, through the official's own official actions, violated the Constitution." Ashcroft, 129 S. Ct. at 1948.
There must be a showing that the supervisor encouraged the specific instance of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at leastimplicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinates.
Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official who is aware of the unconstitutional conduct of his subordinates, but fails to act, generally cannot be held liable in his individual capacity. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996); see also George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) ( ).
The complaint does not allege that Defendants Wharton and Bredesen, by their own actions, violated Plaintiff's rights. Defendant Bredesen is sued as the Governor of Tennessee and because he...
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