# Silva v. Swift

> District Court, M.D. Tennessee · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10437350

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.)

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