Johnson v. Reeves(MAG+)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

BRANDON KYLE JOHNSON, et al., )

)

Plaintiffs, )

)

v. ) Case No. 2:20-cv-379-RAH-JTA

)

JASON REEVES, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This matter is before the court for screening prior to service of process pursuant to

28 U.S.C. § 1915(e). The plaintiffs, proceeding pro se, filed a generally incoherent

complaint which purports to allege claims against Eric James Ernsberger, Mathew S. Raiti,

Randall Barr and Jason Reeves. (Doc. No. 1.) This action was referred to the undersigned

for consideration and disposition or recommendation on all pretrial matters as may be

appropriate pursuant to 28 U.S.C. § 636. (Doc. No. 4.)

For the reasons stated herein, the undersigned finds that this action is due to be

dismissed prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B).

I. STANDARD OF REVIEW

Title 28 U.S.C. § 1915(e)(2) requires a federal court to dismiss an action if it (1) is

frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3)

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seeks monetary relief against a defendant who is immune from such relief. The purpose of

section 1915(e)(2) is “to discourage the filing of, and waste of judicial and private resources

upon, baseless lawsuits that paying litigants generally do not initiate because of the costs

of bringing suit and because of the threat of sanctions for bringing vexatious suits under

Federal Rule of Civil Procedure 11.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). A

dismissal pursuant to section 1915(e)(2) may be made sua sponte by the court prior to the

issuance of process, so as to spare prospective defendants the inconvenience and expense

of answering frivolous complaints. Id. at 324.

A complaint is frivolous under § 1915(e)(2)(B)(i) where it “lacks an arguable basis

either in law or in fact.” Id. at 325. In other words, a complaint is frivolous when it “has

little or no chance of success” – for example, when it appears from the face of the complaint

that the factual allegations are “clearly baseless” or that the legal theories are “indisputably

meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (internal quotations

omitted). A claim is frivolous as a matter of law where, inter alia, the defendants are

immune from suit or the claim seeks to enforce a legal right that clearly does not exist.

Neitzke, 490 U.S. at 327. “Failure to state a claim under § 1915(e)(2)(B)(ii) is governed

by the same standard as dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6).”

Wilkerson v. H & S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass,

112 F.3d 1483, 1490 (11th Cir. 1997)); Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir.

2008).

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To avoid dismissal for failure to state a claim upon which relief can be granted, the

allegations in the complaint must “state a claim for relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above

the speculative level . . . on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555. While Rule 8(a) of the Federal

Rules of Civil Procedure does not require detailed factual allegations, “it demands more

than an unadorned, the defendant unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678. A complaint is insufficient if it “offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action,’ ” or if it “tenders ‘naked assertions’ devoid

of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 555, 557). In short,

the complaint must provide a “ ‘plain statement’ possess[ing] enough heft to ‘sho[w] that

the pleader is entitled to relief.’ ” Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P.

8(a)(2)).

Finally, a plaintiff’s pro se status must be considered when evaluating the

sufficiency of a complaint. “A document filed pro se is ‘to be liberally construed,’ and ‘a

pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

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(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Yet any leniency cannot serve as a

substitute for pleading a proper cause of action. See Odion v. Google Inc., 628 F. App'x

635, 637 (11th Cir. 2015) (recognizing that although courts must show leniency to pro se

litigants, “this leniency does not give a court license to serve as de facto counsel for a party,

or to rewrite an otherwise deficient pleading in order to sustain an action”). “While the

pleadings of pro se litigants are liberally construed, they must still comply with procedural

rules governing the proper form of pleadings.” Hopkins v. St. Lucie Cty. Sch. Bd., 399 F.

App’x 563, 565 (11th Cir. 2010) (internal citations and quotation marks omitted).

II. FACTUAL ALLEGATIONS

On June 4, 2020, Plaintiffs Brandon-Kyle Johnson and Michael-Everet Dennison,

proceeding pro se, filed a Complaint with three attachments. 1 (Doc. No. 1 to Doc. No. 1-

3.) The Complaint consists of a two-page form specifically designed for pro se plaintiffs

accompanied by a ten-page “affidavit.” (See Doc. No. 1.) In the form Complaint, the

plaintiffs allege that their civil rights were violated on December 5, 2019 and name Jason

Reeves, Eric James Ernsberger, Mathew S. Raiti and Randall Barr, all in their personal

capacities, as the defendants. (Id. at 1-2.) The plaintiffs do not provide any factual

allegations nor list the relief requested in the form Complaint as it merely states “see

1 The attachments to the Complaint are listed as follows: (1) Memorandum of Law on Arrest

Without Warrant, (2) Durable Power of Attorney, and (3) File on Demand. (Doc. No. 1-1 to Doc.

No. 1-3.)

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attached” in the designated sections. (Id. at 1-2.) The ten-page affidavit, which is largely

unintelligible, recites facts relating to the arrest of an unidentified “Plaintiff” by a Troy

City Police Officer for a “falsified” failure to appear warrant during a traffic stop on

December 5, 2019. (Id. at 4-5.) This document also does not identify the arresting officer

but merely refers to that person as “the Defendant.” (Id.) This document contains

allegations that the unidentified “Plaintiff” was “unlawfully detained,” “illegally searched,”

and “handcuffed without a warrant” in violation of “Plaintiff’s rights and the constitutional

provisions of due process of law.” 2 (Id.) It also contains allegations that the unidentified

“Plaintiff” was “kidnapped by Troy City Municipality, Pike County Jail, Pike County

Clerk’s Office, Pike County Sheriff’s Office, Pike County District Attorney’s Office [and

the] Pike County District Judges Office.” (Id. at 5.) The document includes three identified

“counts” against “the Defendant,” including two false imprisonment claims under Alabama

law, and a claim for assault and battery. (Id. at 5-6.) The document then lists over 60

federal statutes and state laws, including criminal and civil laws, that range from slavery

2 It appears that the unidentified plaintiff in these events is Plaintiff Johnson. (See Doc. No. 1-1,

Memorandum of Law on Arrest Without Warrant.) Also, Plaintiff Johnson is in custody at the

Pike County Sheriff’s Office, and has been since December 5, 2019, awaiting trial for numerous

charges, including promoting prison contraband, attempting to elude, possession of drug

paraphernalia, trafficking methamphetamine, and possession or receipt of a controlled substance.

See http://www.pikecountyalsheriff.com/roster_view.php?booking_num=103565. (last visited

July 17, 2020). His bond is over $1 million. (Doc. No. 6 at 5) (“Been in Pike County Jail under

one million dollars and twelve thousand bond.”)

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to civil conspiracy under 42 U.S.C. § 1985 to right of liberty under the State of Alabama

Constitution. (Id. at 7-10.)

The document contains language frequently used by individuals claiming to be

“sovereign citizens,” including references to “federal reserve notes,” “free man without the

United States” and the Uniform Commercial Code. The plaintiffs seek $500,000 per hour

in “federal reserve notes,” for a three-hour minimum, for “private contracted services” and

$1 million per hour in “federal reserve notes,” with a three-hour minimum, for the alleged

unlawful arrest. (Id. at 10.)

III. DISCUSSION

The court has carefully reviewed the Complaint in this case pursuant to 28 U.S.C. §

1915(e). Upon review, the court finds that the Complaint is frivolous and fails to state a

claim on which relief may be granted. Consequently, the Complaint is due to be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

First, to the extent the plaintiffs attempt to bring claims under 42 U.S.C. § 1983,3

3 42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory . . . , subjects, or causes to be subjected, any citizen

of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

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the Complaint falls woefully short of stating a claim for relief even under a very liberal

construction. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege a

violation of a right secured by the Constitution or laws of the United States and that the

alleged deprivation was committed or caused by a person acting under color of state law.

West v. Atkins, 487 U.S. 42, 48 (1988). In addition, for liability under § 1983, a plaintiff

must allege an affirmative causal connection between the defendant’s conduct and the

alleged constitutional deprivation. Swint v. City of Wadley, Ala., 51 F.3d 988, 999 (11th

Cir. 1995). Nothing in the plaintiffs’ Complaint asserts a constitutional right upon which

the defendants infringed. The plaintiffs merely list separately the names of the defendants

and various claims, but fail to set forth any factual allegations to show how each defendant

violated their constitutional rights. Because there is insufficient factual support for the

plaintiffs’ legal conclusions, the Complaint fails to state a claim under § 1983 on which

relief may be granted.

Second, to the extent the plaintiffs attempt to bring claims under 42 U.S.C. § 1985,

the Complaint fails to state a claim for relief that is plausible on its face. To make out a

claim under the first clause of 42 U.S.C. § 1985(3)—the only clause potentially applicable

here—a plaintiff must allege:

(1) defendants engaged in a conspiracy; (2) the conspiracy's purpose was to

directly or indirectly deprive a protected person or class the equal protection

of the laws, or equal privileges and immunities under the laws; (3) a

conspirator committed an act to further the conspiracy; and (4) as a result,

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the plaintiff suffered injury to either his person or his property, or was

deprived of a right or privilege of a citizen of the United States.

Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir. 2010) (citing Johnson v.

City of Ft. Lauderdale, 126 F.3d 1372, 1379 (11th Cir. 1997)). The plaintiffs’ Complaint

is devoid of factual allegations plausibly showing a conspiracy of two or more defendants

with the purpose of depriving the plaintiffs of equal protection of the laws or of equal

privilege and immunities under the laws. The Complaint is additionally deficient

specifically as to the second element because it fails to sufficiently allege a discriminatory

animus “lay[ing] behind the conspirators' action.” See Jones v. CitiMortgage, Inc., 666 F.

App'x 766, 773 (11th Cir. 2016) (per curiam) (plaintiff failed to state a claim for relief

under Section 1985(3) because, “[a]mong other problems, his allegations are insufficient

to show the existence of a conspiracy that was premised on any racial or class-based

animus”). Accordingly, the Complaint fails to state a claim under § 1985(3) on which

relief may be granted.

Third, regarding the list of federal criminal statutes, such as 18 U.S.C. § 242,

“[a]bsent some expression of Congressional intent to create a private right of action, a

plaintiff cannot maintain a civil claim against a defendant for violation of a federal criminal

statute.” Johnson v. Champions, 990 F. Supp. 2d 1226, 1245 (S.D. Ala. 2014) (citing

Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1303 (11th Cir. 2008) (rejecting

notion that Congress authorized “a federal private right of action any time a civil plaintiff

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invokes a federal criminal statute”)). Hence, the Complaint fails to state a claim on which

relief may be granted on this basis.

Fourth, the plaintiffs’ substantive submissions to the court are frivolous. Although

the plaintiffs do not specifically identify themselves as “sovereign citizens,” their “filings

here are replete with the legal-sounding but meaningless verbiage commonly used by

adherents to the so-called sovereign-citizen movement.” Sealey v. Branch Banking and

Trust Company, No.: 2:17cv785-MHT-SMD, 2019 WL 1434065, at *2 (M.D. Ala. 2019);

see also Banks v. Fla., No. 2:19-cv-756-FtM-38NPM, 2019 WL 7546620, at *2 (M.D. Fla.

2019) (“Though adorned with pseudo-legalese, the complaint in this action is simply

nonsensical.”). Sovereign citizens “believe they are not subject to the jurisdiction of the

courts and [ ] frequently deny that they are the defendants in the action, instead referring

to themselves as third-party intervenors . . . . Courts have been confronted repeatedly by

their attempts to delay judicial proceedings and have summarily rejected their legal theories

as frivolous.” United States v. Sterling, 738 F.3d 228, 233 n.1 (11th Cir. 2013). Indeed,

the Eleventh Circuit has repeatedly found “sovereign citizen” legal theories to be frivolous.

See, e.g., Trevino v. Florida, 687 F. App'x 861, 862 (11th Cir. 2017) (per curiam) (finding

plaintiff's sovereign citizen arguments frivolous and “clearly baseless”); Linge v. State of

Georgia Inc., 569 F. App'x 895, 896 (11th Cir. 2014) (finding the sovereign citizen

argument to be “wholly insubstantial and frivolous”). Lower federal courts have reached

the same conclusion. See, e.g., Brown v. Georgia, No. CV419-246, 2019 WL 5619010, at

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*1 (S.D. Ga. Oct. 2, 2019), report and recommendation adopted, No. CV419-246, 2019

WL 5618419 (S.D. Ga. Oct. 30, 2019) (“sovereign citizen ramblings are nothing more than

a frivolous attempt to avoid the statues, rules, and regulations that apply to all litigants and

have been consistently rejected by the federal courts”); Roach v. Arrisi, No.: 8:15–cv–

2547–T–33AEP, 2016 WL 8943290 at *2 (M.D. Fla. 2016) (noting that sovereign citizen

theories have not only been consistently rejected by the courts, but they have been

described as “utterly frivolous,” “patently ludicrous,” and “a waste of . . . the court’s time,

which is being paid for by hard-earned tax dollars”) (citation omitted); Larkins v.

Montgomery Cty. Circuit Court, No. 2:19-CV-281-MHT-WC, 2020 WL 2744116, at *3

(M.D. Ala. Apr. 21, 2020), report and recommendation adopted, No. 2:19CV281-MHT,

2020 WL 2739821 (M.D. Ala. May 26, 2020) (rejecting sovereign citizen theory as

frivolous). Accordingly, the plaintiffs’ Complaint is a frivolous sovereign citizen claim

that is due to be dismissed.

IV. CONCLUSION

Based on the foregoing, it is the RECOMMENDATION of the Magistrate Judge

that this case be DISMISSED without prejudice prior to service of process pursuant to 28

U.S.C. § 1915(e)(2)(B)(i) and (ii).

It is further

ORDERED that on or before August 3, 2020, Plaintiffs may file objections to this

Recommendation. Plaintiffs must specifically identify the factual findings and legal

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conclusions in the Recommendation to which the objection is made. Plaintiffs are advised

that frivolous, conclusive, or general objections to the Recommendation will not be

considered. This Recommendation is not a final order and, therefore, it is not appealable.

Failure to file a written objection to the proposed findings and legal conclusions set

forth in the Recommendations of the Magistrate Judge in accordance with the provisions

of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District

Court of these legal and factual issues covered in the Recommendation and waives the right

of the party to challenge on appeal the district court’s order based on unobjected-to factual

and legal conclusions accepted or adopted by the District Court except upon grounds of

plain error or manifest injustice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark

Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (“When the magistrate provides such

notice and a party still fails to object to the findings of fact and those findings are adopted

by the district court the party may not challenge them on appeal in the absence of plain

error or manifest injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE this 17th day of July, 2020.

/s/ Jerusha T. Adams

JERUSHA T. ADAMS

UNITED STATES MAGISTRATE JUDGE

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