El Bey v. Branstool

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVEN ABDUL-AZZIZ EL BEY, :

:

Plaintiff, :

: Case No. 2:23-cv-1258

v. :

: Chief Judge Algenon L. Marbley

:

JUDGE W. DAVID BRANSTOOL, : Magistrate Judge Elizabeth P. Deavers

:

Defendant. :

OPINION & ORDER

This matter is before this Court on Petitioner’s Objections (ECF No. 4) to the Magistrate

Judge’s Report and Recommendation (“R&R”) (ECF No. 3) recommending that Plaintiff’s

complaint by dismissed with prejudice pursuant to 28 U.S.C. § 1915A(b). For the foregoing

reasons, Petitioner’s Objections (ECF No. 4) are OVERRULED, and the Magistrate Judge’s R&R

(ECF No. 3) is ADOPTED. Accordingly, Plaintiff’s Complaint is DISMISSED WITH

PREJUDICE.

I. BACKGROUND

Plaintiff Steven Abdul-Azziz El Bey is an inmate at Allen Correctional Institution. (ECF

No. 3). On February 17, 2016, Plaintiff was convicted of Trafficking in Cocaine and Possession

of Cocaine, both first-degree felonies, after a jury trial and sentenced to eleven years of

incarceration in Case No. 2015-CR-00463. Plaintiff appealed his conviction shortly thereafter,

and the Ohio Fifth District Court of Appeals overruled his assignments of error and affirmed the

conviction. State v. Smith, 5th Dist. Licking No. 16-CA-15, 2016-Ohio-7390.1 Plaintiff then

1 Steven L. Smith, the appellant in the Ohio appellate case, is Steven Abdul-Azziz El Bey, the Plaintiff in this case.

Plaintiff argues at length in both his complaint and objections that “Steven L. Smith” is a “corporate” or “artificial”

sought a writ of habeas corpus from this Court, but on June 18, 2019, his petition was dismissed.

Smith v. Bucanan, No. 2:18-CV-00841, 2019 WL 2524757 (S.D. Ohio June 18, 2019). On April

10, 2023, Plaintiff filed a pro se complaint with this Court in which he argued that the trial court

lacked jurisdiction over him due to his Moorish-American ancestry and the “Treaty of Peace and

Friendship of 1836” between Morocco and the United States. (ECF No. 1). Plaintiff asked this

Court to issue a writ of mandamus compelling Judge W. David Branstool2 to

execute his judicial duties, cease the abuse of power of not allowing

[Plaintiff’s] right to due process by striking lawful and legal

documents from the Record, cease the neglect of improper

performance of administrative duties and follow the operation of

positive law by executing the Affidavit of Fact Notice of Default

Judgement – Demand to Dismiss and Withdraw, and execute the

Writ of Habeas Corpus ad Subjiciendum as the operation if [sic] law

demands.

(Id.) (emphasis omitted).

United States Magistrate Judge Elizabeth P. Deavers conducted a sua sponte preliminary

review of the complaint pursuant to 28 U.S.C. § 1915A(b) and, on April 24, 2023, issued her R&R

which recommended that Plaintiff’s complaint be dismissed with prejudice. (ECF No. 3). The

Magistrate Judge concluded that the complaint failed to state a claim upon which relief may be

granted because the sole remedy for Plaintiff’s requested relief “is a petition for a writ of habeas

corpus after exhausting his state court remedies.” (Id.). The R&R also concluded that this Court

lacks the authority to grant mandamus relief in this case because this Court, a federal district court,

lacks the authority to issue a writ of mandamus compelling a state official to act. (Id.).

construct, and “Steven Abdul-Azziz El Bey” is a “proper” or “natural” person, and that there is a legal distinction

between the two. (ECF No. 1; ECF No. 4). These arguments are completely meritless, and Plaintiff has failed to

provide any real and persuasive legal authority to support them. This Court, in the interest of consistency and

clarity, will refer to Steven simply as “Plaintiff.”

2 Judge David Branstool is a state judge in Licking County, Ohio, who presided over Plaintiff’s criminal conviction

and sentence in Case No. 2015-CR-00463. (ECF No. 3).

Plaintiff objected to the R&R and raised the following issues: (1) the caption of the case is

incorrect; (2) the R&R improperly characterized the complaint as a civil rights action, a § 1983

action, and a petition for a writ of habeas corpus; (3) the Defendant’s failure to respond to the

complaint constitutes a default in Plaintiff’s favor; (4) the R&R incorrectly characterized

Plaintiff’s action as pro se instead of in propria persona; (5) the R&R incorrectly interpreted the

complaint to include a challenge to the trial court’s jurisdiction; (6) the R&R incorrectly concluded

that Judge Branstool is not “an officer or employee of the United States or agency thereof” and is

thus outside the authority of a federal writ of mandamus; and (7) the R&R incorrectly concluded

that the complaint failed to include any “facts to plausibly suggest that the defendant presided over

a matter over which he was without subject matter jurisdiction or that he performed non-judicial

acts.” (ECF No. 4). Plaintiff’s complaint and objections to the Magistrate Judge’s R&R are now

ripe for this Court’s consideration.

II. STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the “judge must

determine de novo any part of the magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(c). After this review, the district judge

“may accept, reject, or modify the recommended disposition; receive further evidence; or return

the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

III. LAW AND ANALYSIS

After conducting its de novo review of Plaintiff’s complaint, the Magistrate Judge’s R&R,

and Plaintiff’s objections, this Court agrees with the Magistrate Judge, and the complaint is hereby

DISMISSED for failure to state a claim upon which relief may be granted.

A. Failure to State a Claim

As the Magistrate Judge noted in her R&R, a complaint may be dismissed as frivolous

when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke

v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th

Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when

plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at

327.

Congress also has authorized the sua sponte dismissal of prisoner complaints that fail to

state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). A complaint filed by a

pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbal

and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and

1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded

factual allegations as true, but need not “accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under 28 U.S.C. § 1361, “[t]he district courts shall have original jurisdiction of any action

in the nature of mandamus to compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.” “The federal courts have no authority to issue a

writ of mandamus directing a state court or its judicial officers in the performance of their duties.”

Woods v. Weaver, 13 F. App’x. 304, 306 (6th Cir. 2001) (affirming the dismissal of the plaintiff’s

complaint pursuant to 28 U.S.C. § 1915A(b)(1) where the plaintiff sought a writ of mandamus

“directing the Michigan courts to consider his state post-conviction motion on the merits.”); see

also Williams-Bey v. Mengel, No. 95-3090, 1996 WL 48884, at *1 (6th Cir. Feb. 6, 1996)

(“Williams-Bey was not entitled to mandamus relief as federal courts have no authority to direct

state courts, or their officers, in the performance of their duties”).

Plaintiff’s complaint fails to state a claim upon which relief may be granted. Even under

the liberal construction to which pro se pleadings are entitled, Plaintiff’s filings can be fairly

characterized as largely incoherent compilations of conclusory statements presented as recitations

of law, citations to inapplicable state statutes, and miscellaneous quotations taken from non-

authoritative sources, including the “Illustrious Noble Drew Ali, the only Divine Prophet to be

born in America” and a proposed, but never ratified, version of the Thirteenth Amendment.

Despite this, it is still possible to ascertain Plaintiff’s sought-after relief: a writ of mandamus from

this Court compelling a state court judge to release Plaintiff from incarceration and restore his

effects. Fatal to Plaintiff’s claims, however, is the fact that this Court, a federal district court, does

not have the authority to issue a writ of mandamus directing a state judge in the performance of

his or her duties. Because this Court cannot, by law, grant Plaintiff the relief he seeks, Plaintiff

has failed to state a claim for which relief can be granted and the complaint is DISMISSED.

B. Plaintiff’s Objections

Plaintiff raised numerous objections that questioned nearly every aspect of the R&R,

including the caption of the case. (ECF No. 4). However, this Court need only consider the merits

of each objection that is relevant to the Magistrate Judge’s dispositive holding and will overrule

the remaining irrelevant objections. See Martin v. U.C. Med. Ctr., No. 1:19-CV-00667, 2020 WL

5640052 (S.D. Ohio Sept. 22, 2020) (overruling objections that were not relevant to the substance

of the Magistrate Judge’s report and recommendation). Plaintiff’s objections are each hereby

OVERRULED for the foregoing reasons.

First, Plaintiff objects to the caption of the case. (ECF No. 4). In the complaint, the plaintiff

of the case was written as “Steven Abdul-Azziz El Bey, In Propria Persona, Ex Relatione and

Authorized Representative for: STEVEN L. SMITH, CESTUI QUE TRUST ESTATE (Ens Legis).”

(ECF No. 1) (emphasis in original). The caption of the R&R changed this text simply to read

“STEVEN ABDUL-AZZIZ EL BEY.” (ECF No. 3). Plaintiff objected to this change, arguing that

this has “converted and misidentified the original proper name to a juristic, trade, commercial

name.” (ECF No. 4). This objection is not relevant to the dispositive holding that the complaint

fails to state a claim upon which relief may be granted and, thus, it is OVERRULED as irrelevant.

See Martin, 2020 WL 5640052.

Second, Plaintiff objects to the R&R’s characterization of his complaint as a civil rights

action, a § 1983 action, and a petition for a writ of habeas corpus. (Id.). The R&R did not ignore

Plaintiff’s intention, however, to petition for a writ of mandamus. (ECF No. 3). Rather, it

generously considered a variety of possible interpretations of the complaint and concluded,

correctly, that each possible interpretation warranted dismissal, including Plaintiff’s intended

request for a writ of mandamus. (Id.). This objection is OVERRULED.

Third, Plaintiff argues throughout his complaint and objections that certain “facts” are true,

and this Court must treat these “facts” as true, because Defendant has not rebutted his claims.

(ECF No. 1, 4). The “facts” Plaintiff refers to are not evidentiary facts, but rather fictional legal

rules and conclusions Plaintiff refers to as facts. (ECF No. 4). Furthermore, this is a sua sponte

preliminary review of Plaintiff’s complaint, which occurs either before a complaint is docketed or

“as soon as practicable” after a complaint is docketed, which are both time periods well-before a

response from Defendant could be expected. 28 U.S.C. § 1915A(b)(1). Plaintiff cannot speak

new law into existence and, therefore, this objection is without merit and is OVERRULED.

Fourth, Plaintiff objects to the R&R’s characterization of his action as pro se instead of in

propria persona. (ECF No. 4). Despite Plaintiff’s arguments to the contrary, it is well established

that pro se and in propria persona are materially synonymous in this context. See Beatty v. Caruso,

64 F. App’x. 945, 946 n.2 (6th Cir. 2003) (“We understand the phrases in propria persona and in

pro per, used by Beatty, to be synonymous with the term pro se.”); United States v. Pryor, 842

F.3d 441, 450 n.5 (6th Cir. 2016) (In propria persona and pro se are “legally equivalent.”); Rudd

v. Keybank, N.A., No. C2-05-CV-0523, 2006 WL 212096 at *1 n.2 (S.D. Ohio Jan. 25, 2006) (Pro

se and in propria persona “mean virtually the same thing, and the Court will construe them as

such.”). This objection is OVERRULED.

Fifth, Plaintiff objects to the R&R, accusing the Magistrate Judge of misinterpreting his

complaint when she stated that “plaintiff challenges the trial court’s jurisdiction over his state-

court criminal conviction/sentence and seeks relief in the form of immediate release.” (ECF No.

4). Plaintiff states that he does not now challenge the trial court’s jurisdiction, instead he argues

that he already did so with the trial court five years ago. (Id.). This objection does not bear upon

the dispositive conclusion that the complaint has failed to state a claim for which relief may be

granted and, thus, it is OVERRULED as irrelevant. See Martin, 2020 WL 5640052.

Sixth, Plaintiff objects to the R&R’s conclusion that Judge Branstool is not “an officer or

employee of the United States or any agency thereof” and is thus outside the authority of a federal

writ of mandamus. (Id.). Plaintiff argues that “THE LICKING COUNTY COURT OF COMMON

PLEAS and its officers i.e. the Defendant W. David Branstool are but corporate franchises of the

UNITED STATES OF AMERICA, INC.” (Id.). To arrive at this unusual conclusion, Plaintiff first

states that “in order for the Federal Government to tax a Citizen of one of the several states, there

had to be created a contractual nexus.” (Id.). This strange requirement is not found in the Taxing

Clause of the U.S. Constitution, art. I, § 8, cl. 1, nevertheless, Plaintiff continues by asserting that

the federal government created such a “contractual nexus” through Social Security, the Board of

which created “10 Social Security Districts” which served as “Federal Areas” that overlayed the

states. (Id.). According to Plaintiff, “[a] ‘Federal area’ attaches to anyone who has a social security

number or any personal contact with the federal or state governments.” (Id.). Therefore, in

Plaintiff’s view, U.S. citizens who reside in any of the states are “property and franchises of the

federal government,” including the Licking Count Court of Common Pleas and Judge Branstool.

(Id.). Unfortunately for Plaintiff, Sixth Circuit precedent demonstrates that state judges are,

unsurprisingly, not officers or employees of the federal government and not subject to federal writs

of mandamus. See Woods, 13 F. App’x. at 306; Williams-Bey, 1996 WL 48884, at *1. This

objection is OVERRULED.

Seventh, and finally, Plaintiff objects to the R&R’s conclusion that the complaint failed to

include any “facts to plausibly suggest that the defendant presided over a matter over which he

was without subject matter jurisdiction or that he performed non-judicial acts.” (ECF No. 4). This

objection relates to the R&R’s analysis of the complaint to the extent it could be characterized as

being brought under 42 U.S.C. § 1983. (ECF No. 3). Plaintiff expressly stated that he wishes

his complaint to be treated only as a petition for a writ of mandamus. (ECF No. 4). Because this

objection does not relate to the dispositive conclusion that the complaint fails to state a claim for

which relief may be granted, a conclusion based solely upon a characterization of Plaintiff's

complaint as a petition for a writ of mandamus, this objection is OVERRULED as irrelevant. See

Martin, 2020 WL 5640052.

IV. CONCLUSION

Having considered Plaintiff’s objections and conducting a de novo review of the complaint

and the Magistrate Judge’s R&R, this Court finds that the objections are without merit.

Accordingly, the Magistrate Judge’s R&R (ECF No. 3) is ADOPTED and Plaintiff’s objections

(ECF No. 4) are OVERRULED, and Plaintiff’s complaint (ECF No. 1) is DISMISSED WITH

PREJUDICE. Furthermore, because reasonable jurists would not disagree with this conclusion,

this Court DECLINES to issue a certificate of appealability and CERTIFIES to the Sixth Circuit

that any appeal would be objectively frivolous and should not be permitted to proceed.

IT ISSO ORDERED.

ALGENONMAL. MARBL

CHIEF UNITED STATES DISTRICT JUDGE

DATED: June 12, 2024