Silva v. Swift

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DANIEL JAMES SILVA, )

)

Plaintiff, )

) No. 3:21-cv-00505

v. ) Judge Marvin E. Aspen

)

ANDREA FINLAY SWIFT, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Daniel James Silva, a pro se North Carolina resident, has filed an Amended

Complaint under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act against

Defendants Andrea Finlay Swift, Scott Kingsley Swift, 13 Management, Neal and Harwell, Judge

Joe Binkley, Judge William L. Campbell, Jr., Judge Eli J. Richardson, and Jay Schaudies.1 (Dkt.

No. 11.) Plaintiff also submitted an amended in forma pauperis application. (Dkt. No. 12.) The

case is ready for decision on the application and initial review of the Amended Complaint.

I. In Forma Pauperis Application

A federal court may authorize a person to file a civil suit without paying the filing fee. 28

U.S.C. § 1915(a). To determine if in forma pauperis status is appropriate, we consider whether

Plaintiff can pay court costs “without undue hardship.” Foster v. Cuyahoga Dep’t of Health and

Human Servs., 21 F. App’x 239, 240 (6th Cir. 2001). The application reflects that Plaintiff is

unemployed, unable to drive, and receives a small monthly income that does not significantly

1 We GRANT Plaintiff’s “Motion to Strike” (Dkt. No. 14), which asks to substitute this version of the

Amended Complaint (Dkt. No. 11) for a previous version filed in error (Dkt. No. 9).

exceed basic expenses. (See Dkt. No. 12.) Furthermore, Plaintiff reports no significant

discretionary expenses, cash reserves, or assets. (Id.) Accordingly, we find that Plaintiff cannot

pay the full civil filing fee in advance without undue hardship. The application (Dkt. No. 12) is,

therefore, GRANTED. Plaintiff’s prior application (Dkt. No. 10) is DENIED AS MOOT.

II. Initial Review of the Complaint

We must conduct an initial review of the in forma pauperis Amended Complaint and

dismiss the Amended Complaint if it is frivolous, malicious, fails to state a claim upon 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); see also Ongori v. Hawkins, No. 16-2781, 2017 WL 6759020, at *1 (6th

Cir. Nov. 15, 2017) (“[N]on-prisoners proceeding in forma pauperis are still subject to the

screening requirements of § 1915(e).”).

“Pro se complaints are to be held to less stringent standards than formal pleadings drafted

by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383

(6th Cir. 2011); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Estelle v. Gamble, 429 U.S. 97

(1976)). Even under this lenient standard, however, pro se plaintiffs must meet basic pleading

requirements and are not exempted from the requirements of the Federal Rules of Civil Procedure.

Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004); see also Brown v. Mastauszak, 415 F. App’x

608, 613 (6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out

in his pleading.”).

In reviewing the Amended Complaint, we apply the standard for Rule 12(b)(6) of the

Federal Rules of Civil Procedure. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). We view

the Amended Complaint in the light most favorable to a plaintiff and take all well-pleaded factual

allegations as true. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)

(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). We then

consider whether the factual allegations “plausibly suggest an entitlement to relief,” Williams, 631

F.3d at 383 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)), that rises “above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Finally, we do not accept as true

“unwarranted factual inferences,” DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)

(quoting Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000)), and “legal conclusions

masquerading as factual allegations will not suffice.” Eidson v. Tenn. Dep’t of Children’s Servs.,

510 F.3d 631, 634 (6th Cir. 2007).

After conducting this initial review, it is readily apparent that the Amended Complaint does

not plausibly allege Plaintiff is entitled to relief against any Defendant under the RICO Act. First,

Plaintiff alleges that Judges Binkley, Campbell, and Richardson engaged in misconduct while

presiding over Plaintiff’s legal cases. (See Dkt. No. 11 at 11-12.) However, “a judge performing

his or her judicial functions is absolutely immune from suit seeking monetary damages.”2 Johnson

v. Gibson, No. 20-3280, 2020 WL 5353293, at *3 (6th Cir. July 22, 2020) (citing Mireles v. Waco,

502 U.S. 9, 9-10 (1991) (per curiam)). Judicial immunity is not overcome by allegations of bad

faith or malice, nor by a judge acting erroneously, corruptly, or in excess of his jurisdiction.

Johnson v. Turner, 125 F.3d 324, 333 (6th Cir. 1997). A judge is subject to suit only where: (1)

the judge acts in a non-judicial capacity; or (2) the judge acts in the complete absence of all

jurisdiction. Mireles, 502 U.S. at 11-12. The Amended Complaint does not allege that Judges

Binkley, Campbell, or Richardson acted in a non-judicial capacity or in the complete absence of

2 In addition to seeking money damages from all Defendants (see Dkt. No. 11 at 20-21), Plaintiff also seeks

one form of injunctive relief: the voiding of a final judgment in 2020 federal lawsuit presided over by Judge

Campbell. (Id. at 20.) This request is frivolous, because the Court has no power to so enjoin a parallel

federal judgment. Plaintiff’s remedy for a dissatisfying judgment in a separate federal case is an appeal of

that judgment to the appropriate U.S. Court of Appeals – here, the Sixth Circuit.

all jurisdiction. (See Dkt. No. 11.) Thus, Judges Binkley, Campbell, and Richardson are absolutely

immune from Plaintiff’s RICO claims.

Moreover, Plaintiff’s allegations against the remaining Defendants are speculative and

insufficient to plausibly suggest any entitlement to relief under the RICO Act. The Amended

Complaint vaguely alleges that the remaining Defendants were – somehow – accessories to

concerted RICO violations by non-parties Taylor Swift, Mozianio Reliford (a lawyer), and Andrew

Mullen (a police officer). (See Dkt. No. 11.) Accordingly, we construe the Amended Complaint

to allege that the remaining Defendants were engaged in a RICO conspiracy. See 18 U.S.C.

§ 1962(d); Silva v. Swift, Case No. 20-cv-810 (Dkt. No. 14) (construing complaint by Plaintiff to

allege similar RICO conspiracy among similar defendants).

The RICO Act allows civil plaintiffs to seek redress for predicate acts of racketeering

activity or collection of unlawful debt. See 18 U.S.C. § 1962. To state a RICO conspiracy claim,

however, a plaintiff must plausibly allege a RICO violation plus “the existence of an illicit

agreement to violate the substantive RICO provision.” Heinrich v. Waiting Angels Adoption

Servs., Inc., 668 F.3d 393, 411 (6th Cir. 2012) (quoting United States v. Sinito, 723 F.2d 1250,

1260 (6th Cir. 1983)). “An agreement can be shown if the defendant objectively manifested an

agreement to participate directly or indirectly in the affairs of an enterprise through the commission

of two or more predicate crimes.” Sinito, 723 F.2d at 1261 (internal quotation and editing marks

omitted).

The Amended Complaint, however, fails to coherently allege that any of the remaining

Defendants engaged in RICO violations or demonstrated an illicit agreement to participate in a

criminal enterprise. The Amended Complaint alleges that Defendants Andrea Finley Swift and

Scott Kingsley Swift are “potentially guilty of four counts of mail fraud by [Reliford]”; 13

Management “committed multiple counts of [mail and wire fraud]” by directing a non-party lawyer

to make “fraudulent filings in all [Plaintiffs] lawsuits”; Neal and Harwell violated RICO by

employing Reliford, who committed mail fraud; and Jay Schaudies filed a false police report about

Plaintiff and is an “accessory after the fact” of Reliford’s mail fraud. (Dkt. No. 11 at 9-13.) These

cursory, non-specific allegations are accompanied by untethered statutory references and

conclusory accusations.? (See Dkt. No. 11.) Even construing the Amended Complaint most

liberally, we conclude that Plaintiff's allegations are far too speculative to plausibly allege the

required elements of a RICO conspiracy. See Twombly, 550 U.S. at 555. Accordingly, Plaintiff

has not demonstrated that he is entitled to any relief against Andrea Finley Swift, Scott Kingsley

Swift, 13 Management, Neal and Harwell, or Jay Schaudies.

Il. Conclusion

For these reasons, we conclude that Plaintiff has not stated a colorable claim against

Defendants under the RICO Act. In the absence of any other plausible right to relief, the Amended

Complaint is DISMISSED.

This is the final Order denying all relief in this case. The Clerk SHALL enter judgment.

Fed. R. Civ. P. 58(b). Because an appeal would not be taken in good faith, Plaintiff is not certified

to appeal the judgment in forma pauperis. 28 U.S.C. § 1915(a)(3).

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

Dated: August 26, 2021

3 The remainder of the lengthy Amended Complaint is an amalgam of incomprehensible references, bald

assertions, and personal musings that Plaintiff has aired in repeated federal complaints. Discussion of these

matters is not necessary for purposes of initial review. (See Dkt. No. 12.)