Eberhardt v. Graves
Decision Date | 29 June 2016 |
Docket Number | No. 16-cv-3153,16-cv-3153 |
Parties | DON FRANK EBERHARDT, Plaintiff, v. RUDOLPH BRAUD, JR., JUDGE, And Co-Conspirators: LESLIE GRAVES, JUDGE; and APRIL TROEMPER, JUDGE, and others, Defendants. |
Court | U.S. District Court — Central District of Illinois |
This cause is before the Court on pro se Plaintiff Don Frank Eberhardt's Motion (d/e 4) to proceed in forma pauperis, Motion for Hearing (d/e 2) on the motion to proceed in forma pauperis, and Motion for Hearing and Motion for Joinder (d/e 5) seeking to consolidate this lawsuit with Plaintiff's lawsuit in Eberhardt v. Braud, Case No. 16-cv-3080. The Court finds that no hearing is necessary, and Petitioner's requests for a hearing are DENIED. Because Plaintiff's Complaint fails to state a claim, the Motion seeking to proceed in forma pauperis is DENIED and the motion to consolidate this case with Case No. 16-cv-3080 is DENIED AS MOOT.
On June 10, 2016, Plaintiff filed a three-count Complaint against Defendants Rudolph Braud, Jr., a Sangamon County, Illinois associate judge; and Leslie Graves and April Troemper, both Sangamon County, Illinois circuit judges. Plaintiff alleges that Defendants violated Plaintiff's rights in a state court dissolution of marriage case.1
According to Plaintiff, Plaintiff's former wife, Aura Monica Eberhardt, was still legally married to another man when she married Plaintiff. Therefore, according to Plaintiff, no valid marriage took place and Aura was an illegal alien. Nonetheless, Judge Braud entered a dissolution of marriage and forced Plaintiff to sign a real estate sales agreement under threats of immediate imprisonment and "horrendous daily fines." Compl. at 6 (d/e 1). Plaintiff allegesthat Judge Braud's orders are void because he did not have jurisdiction to hear immigration fraud, citizenship fraud, and social security fraud cases.
Plaintiff further alleges that the court reporter on August 5, 2011, the date Plaintiff testified in state court, was threatened or forced to alter, destroy, or withhold part of Plaintiff's testimony that day. Plaintiff claims that Judge Braud's legal abuse and abuse of process was continued through the "Sorling Sorority Sinister Sisterhood" and "secret court within the court" consisting of Judge Graves and Judge Troemper, who also denied Plaintiff his civil rights. Compl. at 6.
Plaintiff alleges that Defendants violated the civil Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, and two criminal statutes: 18 U.S.C. § 1346 ( ), and 18 U.S.C. § 1951 ( ). Plaintiff seeks relief from all orders made in violation of law and monetary compensation of at least $1 million and as much as $6 million.
When a plaintiff seeks leave to proceed in forma pauperis, his complaint is subject to review by the district court. See 28 U.S.C. § 1915(e)(2); Estrada v. Reed, 346 F. App'x 87, 90 ) (unpublished disposition) ( ). Moreover, the district court shall dismiss the case if the court determines that the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B)(i)-(iii); see also Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999) ( )(citing 28 U.S.C. §1915(e)(2)(B)). When screening a complaint to determine whether it states a claim, the court applies the same standard used to evaluate dismissals under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Arnett v Webster, 658 F.3d 742, 751 (7th Cir. 2011) ( ).
To state a claim for relief, a plaintiff need only provide a short and plain statement of the claim showing he is entitled to relief and giving the defendants fair notice of the claims. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A court construes the complaint in the light most favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in the plaintiff's favor. Id. Pro se pleadings are liberally construed. See Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014) ( ).
A complaint must, however, set forth facts that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plausible claim is one that alleges facts from which a court can reasonably infer that the defendants are liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely reciting the elements of a cause of action or supporting claims with conclusory statements is insufficient to state a cause of action. Id.
To state a claim for a RICO violation under § 1962(c)2, Plaintiff must allege: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Gamboa v. Velez, 457 F.3d 703, 705 (7th Cir. 2008). To allege racketeering activity, Plaintiff must allege that the Defendants violated one or more of the acts listed in § 1961(1). See Daniels v. Bursey, 313 F. Supp. 2d 790, 813 (N.D. Ill. 2004); 18 U.S.C. 1961(1)(A). Section 1961(1)(F) defines racketeering activity to include any act that is indictable under Section 274 of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(A)(iii)), which prohibits a person from knowingly or recklessly concealing, harboring, or shielding from detection an illegal alien in the United States. Plaintiff alleges Defendants violated Section 274 of the Immigration and Nationality Act. See Compl. at 1.
A pattern of racketeering activity is defined as at least two acts of racketeering activity (also called "predicate acts"). 18 U.S.C.§ 1961(5); Krakow Business Park v. Locke Lord, LLP, 135 F. Supp. 3d 770, 786-87 (N.D. Ill. 2015), appeal filed. Plaintiff must also allege facts that show that Defendants' pattern of racketeering activity "amount[s] to or pose[s] a threat of continued criminal activity." Gamboa, 457 F.3d at 705 (quoting Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1002 (7th Cir. 2004)). Allegations of isolated instances of criminal behavior that do not pose a threat of future harm are not sufficient to allege a pattern of racketeering activity. Gamboa, 457 F.3d at 705.
In this case, Plaintiff does not allege a pattern of racketeering activity. As evidence of a second act of racketeering activity, Plaintiff alleges a "hypothetical" witness would "hypothetically" testify, if given absolute immunity, that he became wealthy through the promise of guaranteed verdicts in his favor. See Compl. at 2 (d/e 1). However, these allegations are conclusory at best, and insufficient to state a claim. Iqbal, 556 U.S. at 678 ( ). Moreover, the facts do not support a pattern of racketeering activity involving concealing, harboring, or shielding from detection an illegal alien in the United States. See Corley, 388 F.3d at 1002 ( )(quotations and citations omitted). Finally, Plaintiff does not allege facts that plausibly show any threat of future harm from ongoing racketeering activity. Therefore, Count 1 fails to state a claim.
Counts 2 and 3 must also be dismissed. Plaintiff attempts to bring a private right of action under 18 U.S.C. § 1346 and 18 U.S.C. § 1951, but those criminal statutes do not contain an express or implied private right of action. See Stanard v. Nygren, 658 F.3d 792, 794 (7th Cir. 2011) ( ); Bajorat v. Columbia-Breckenridge Dev. Corp., 944 F. Supp. 1371, 1377-78 (N.D. Ill. 1996) ( ); Hayes v. Shelby Cnty. Tr., 971 F.Supp.2d 717, 726 (W.D. Tenn. 2013) ( ).
For the reasons stated, Plaintiff's Complaint fails to state a claim on which relief can be granted. Therefore, Plaintiff's Motion(d/e 4) to proceed in forma pauperis is DENIED and Plaintiff's Complaint is DISMISSED without prejudice. Plaintiff's Motion for Joinder (d/e 5) is DENIED AS MOOT. Plaintiff's requests for...
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