affirming district court’s Fed. R. Civ. P. 41(b) dismissal for failure to comply with court order, where plaintiff failed to follow order to file an amended complaint, “[d]espite warnings that dismissal could result from his failure to do so”
How later courts described this case
- affirming district court’s Fed. R. Civ. P. 41(b) dismissal for failure to comply with court order, where plaintiff failed to follow order to file an amended complaint, “[d]espite warnings that dismissal could result from his failure to do so”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AFFAN SIRAJ ZUHAYR EL, )
)
Plaintiff, )
)
v. ) No. 4:22-cv-00520-RWS
)
JOHN BODENHAUSEN, et al., )
)
Defendants. )
MEMORANDUM AND ORDER
This matter comes before the Court on its own motion. On June 30, 2022, the Court ordered
plaintiff Affan Siraj Zuhayr El to either file a motion for leave to proceed in forma pauperis or pay
the entire filing fee. (Docket No. 7). He was sent a copy of the Court’s motion for leave to proceed
in forma pauperis form, and given thirty days in which to respond. In reply, plaintiff has submitted
an “Affidavit of Fact” that fails to comply with the Court’s order. Accordingly, for the reasons set
forth below, the Court will dismiss this action without prejudice. See Fed. R. Civ. P. 41(b).
Background
Plaintiff is a self-represented litigant who filed a civil action on May 11, 2022, naming
Judge John Bodenhausen and Clerk of Court Gregory Linhares as defendants. (Docket No. 1).
Along with the complaint, plaintiff submitted an “Affidavit of Financial Statement.” (Docket No.
2). In the affidavit, he stated that he is a member of the Moorish Science Temple of America, and
that he is “Not a Corporate Person or Entity, Misrepresented by Fraudulent Construct of ALL
CAPITAL LETTERS.” (Docket No. 2 at 1). Plaintiff further asserted that the United States
Constitution provides for the payment of debt in “gold or silver coin” only. (Docket No. 2 at 2).
As he does not have any gold or silver coins, he insisted that he has a “right to free access to the
courts.” Plaintiff also contended that the Court’s “demand” for a financial statement is “an
instrument to deny [him] due process of law.”
On June 30, 2022, the Court reviewed plaintiff’s affidavit and determined that it does not
comply with 28 U.S.C. § 1915. (Docket No. 7). In particular, the Court noted that § 1915 requires
a person seeking in forma pauperis status to submit “an affidavit that includes a statement of all
assets” the individual possesses. See 28 U.S.C. § 1915(a)(1). Plaintiff’s affidavit did not include
this information. As such, the Court directed plaintiff to either file a motion for leave to proceed
in forma pauperis or pay the filing fee within thirty days. To aid his compliance, the Court sent
him a copy of its motion for leave to proceed in forma pauperis form. Plaintiff was warned that his
failure to comply with the Court’s order would result in the dismissal of this action.
In response to the Court’s order, plaintiff submitted a document titled “Affidavit of Fact”
on July 28, 2022. (Docket No. 8).
Plaintiff’s “Affidavit of Fact”
In plaintiff’s “Affidavit of Fact,” he asserts that he is “in receipt of [the Court’s] instrument
dated 06/30/2022.” (Docket No. 8 at 1). He goes on to state that “[t]he district courts of the United
States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against
the laws of the United States.” According to plaintiff, he is a:
Religious Moorish American National, Aboriginal,
Indigenous, Ambassador, Consul, Minister, Natural Person,
and not a nom-de-guerre, straw man, or any other artificial
corporate construct as written in all CAPITAL LETTERS,
by the unclean hands of others…
(Docket No. 8 at 2). In other words, he contends that he is “Sovereign…to this Land,” and that a
“Sovereign is exempt from suit.”
Plaintiff accuses the Court of having made a “misrepresented assumption that [his]
Affidavit was a Motion,” when it is actually the “exercise of a Right.” He quotes the Missouri
Constitution for the proposition that “the courts of justice shall be open to every person…and
justice shall be administered without sale, denial or delay.” As before, plaintiff also explains that
he “does not have or possess any gold or silver coins,” which are the only tender for the payment
of debts. (Docket No. 8 at 3).
Rather than responding to the Court’s order, plaintiff devotes much of his affidavit to
disparaging the Court. For instance, he suggests that “access to the court, which is a Constitutional
Right, is for sale.” (Docket No. 8 at 4). He also alleges that the Court has somehow violated its
“solemn Oath to uphold and Support the Constitution for the United States Republic,” and has
denied him due process. (Docket No. 8 at 3). He argues that the Court’s “demand for a Financial
Statement is [being] used as an instrument to deny due process of Law and [his] right to free access
to the Courts.” Furthermore, he asserts that after he “introduced an Affidavit of Fact, marked as
Evidence,” some unidentified person “in the Courts tampered with that Evidence, and
misrepresented it as a Motion.”
Plaintiff closes the “Affidavit of Fact” by stating that “it is obligatory upon the Officers of
the United States District Court [for the] Eastern District of Missouri to terminate this matter and
proceed with the original complaint submitted,” and to “hold [defendants] in default, and award
default judgment.” (Docket No. 8 at 4). In addition, he seeks to have “[a]ll officers and parties
involved be sanctioned for their violations against the law and the rights of the people, of which
they have an oath bound and fiduciary duty to uphold, protect and preserve.” (Docket No. 8 at 5).
Finally, plaintiff demands “free access to the Court” without the payment of a filing fee.
Discussion
On June 30, 2022, the Court ordered plaintiff to either file a motion for leave to proceed in
forma pauperis or pay the filing fee. Plaintiff has done neither. Rather, he has submitted a
document arguing that he does not have to pay a filing fee, suggesting improprieties by Court
personnel, and accusing the Court of violating the Constitution. This does not comply with the
Court’s order. Therefore, for the reasons discussed below, the Court will dismiss this action
without prejudice.
A. Requirements of 28 U.S.C. § 1915
The Clerk of Court in each district court is required to collect a filing fee from any party
“instituting any civil action, suit or proceeding in such court.” See 28 U.S.C. § 1914(a). For persons
unable to pay the fee, 28 U.S.C. § 1915 allows a party to proceed in forma pauperis. See Greaser
v. State of Missouri, Dep’t of Corrs., 145 F.3d 979, 985 (8th Cir. 1998). This statute “is designed
to ensure that indigent persons will have equal access to the judicial system.” Pursuant to § 1915,
a federal district court may authorize the commencement of a civil action without prepayment of
the fees “by a person who submits an affidavit that includes a statement of all assets such [person]
possesses.” 28 U.S.C. § 1915(a)(1). See also E.D. Mo. L.R. 2.05(A) (“An application to proceed
in forma pauperis shall be accompanied by a statement of the applicant’s financial information set
forth on a form provided by the Court. The Court may require the submission of additional
information in a particular case”).
In forma pauperis status, however, is a matter of privilege, not of right. Williams v.
McKenzie, 834 F.2d 152, 154 (8th Cir. 1987). To enjoy the statute’s benefits, a plaintiff has to
demonstrate that, because of his poverty, he cannot pay for the litigation costs and still be able to
provide for the necessities of life. See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
339 (1948). The determination of whether to grant or deny in forma pauperis status under 28 U.S.C.
§ 1915 is within the sound discretion of the trial court. Lee v. McDonald’s Corp., 231 F.3d 456,
458 (8th Cir. 2000).
B. Requirement to Comply With Court Orders
“In general, pro se representation does not excuse a party from complying with a court’s
orders and with the Federal Rules of Civil Procedure.” Ackra Direct Marketing Corp. v. Fingerhut
Corp., 86 F.3d 852, 856 (8th Cir. 1996). To that end, Rule 41(b) of the Federal Rules of Civil
Procedure “provides that a court may dismiss a case for failure to comply with court orders.” In re
Reid, 197 F.3d 318, 320 (8th Cir. 1999). If a self-represented plaintiff fails to comply with a court
order, the court may dismiss the action on its own initiative. See Brown v. Frey, 806 F.2d 801, 803
(8th Cir. 1986). See also Dudley v. Miles, 597 Fed. Appx. 392 (8th Cir. 2015) (affirming district
court’s Fed. R. Civ. P. 41(b) dismissal for failure to comply with court order, where plaintiff failed
to follow order to file an amended complaint, “[d]espite warnings that dismissal could result from
his failure to do so”).
C. Plaintiff’s Response Fails to Comply With the Court’s Order of June 30, 2022
In this case, plaintiff initially filed an “Affidavit of Financial Statement” along with his
complaint. As noted above, this particular affidavit did not provide any financial information.
Instead, it consisted of citations from caselaw and the United States Constitution, and asserted that
plaintiff did not have to pay a filing fee because he did not possess “any gold or silver coins.” The
Court determined that this filing did not comport with 28 U.S.C. § 1915, and directed plaintiff to
file a motion for leave to proceed in forma pauperis or pay the filing fee. He was also sent a copy
of the Court’s motion for leave to proceed in forma pauperis form. Plaintiff was warned that his
failure to comply would result in the dismissal of this action.
In response, plaintiff submitted an “Affidavit of Fact.” Once again, he refused to provide
any financial information. Instead, plaintiff accused the Court of violating its oath, of violating
the constitution, and of tampering with his evidence. He also maintained his position that debts
can only be paid in gold or silver coins, and that he does not possess any gold or silver coins. As
such, plaintiff demanded “free access to the Court by Right.”
Despite the Court’s warning of potential dismissal, plaintiff has not filed a motion for leave
to proceed in forma pauperis or paid the filing fee. His “Affidavit of Fact” does not comply with
28 U.S.C. § 1915 or with the Court’s local rules. Specifically, the “Affidavit of Fact” does not
include “a statement of all assets [plaintiff] possesses.” See 28 U.S.C. § 1915(a)(1). See also E.D.
Mo. L.R. 2.05(A).
Furthermore, plaintiff’s argumentative response indicates a willful refusal to follow the
directions in the Court’s June 30, 2022 order. As already discussed, the Court ordered plaintiff to
either move for leave to proceed in forma pauperis or pay the filing fee, and also provided him
with a form motion to aid his compliance. He responded with frivolous accusations and dubious
legal assertions.
The Court also notes that plaintiff has engaged in this behavior before. In Zuhayr El v.
Snead, et al., 2:22-cv-22-HEA (E.D. Mo. May 11, 2022), plaintiff was ordered to either file a
motion for leave to proceed in forma pauperis or pay the filing fee. Plaintiff rejoined by submitting
both an “Affidavit of Fact” and an “Affidavit of Financial Statement,” similar to those filed in the
instant case. When the Court again ordered him to file a motion for leave to proceed in forma
pauperis, he filed a “Writ in Forma Pauperis,” demanding free access to the Court and accusing
the Court of constitutional violations. On June 28, 2022, the Court dismissed plaintiff’s action
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. This dismissal occurred before the
Court’s June 30, 2022 order, meaning that plaintiff's subsequent filings in the instant case were
made with an understanding of the consequences.
Even though he is proceeding pro se, plaintiff is still required to comply with the Court’s
orders. See Ackra Direct Marketing Corp., 86 F.3d at 856. If plaintiff fails to comply with an order,
the Court can dismiss his action on its own initiative. See Brown, 806 F.2d at 803. In this case, as
set forth above, plaintiff has failed to comply with the Court’s order requiring him to either file an
appropriate motion for leave to proceed in forma pauperis or pay the filing fee. More to the point,
he has steadfastly and intentionally refused to comply, despite being warned of dismissal.
Therefore, the Court will dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice for failure
to comply with the Court’s order of June 30, 2022. See Fed. R. Civ. P. 41(b). A separate order of
dismissal will be entered herewith.
Dated this 3rd day of August, 2022.
ODN W. SIPPE
UNITED STATES DISTRICT JUDGE