Brown v. Dickson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

LEANDRA BROWN,

Plaintiff,

v. Case No. 24-CV-362

PENELOPE DICKSON,

Defendant.

RECOMMENDATION AND ORDER

On March 22, 2024, plaintiff Leandra Brown, who is representing himself and

currently incarcerated at the Milwaukee Secure Detention Facility, filed a complaint

against defendants Penelope Dickson and Midwest Wisconsin Corporate Guardianship.

(ECF No. 1.) On June 11, 2024, the court received Brown’s payment of the filing fee. On

June 17, 2024, the court screened Brown’s complaint pursuant to 28 U.S.C. § 1915A.

(ECF No. 22.) After determining that Brown had not stated any plausible claims for

relief, the court recommended dismissal of Brown’s complaint but gave him two weeks

to file an amended complaint before recommending that the action be dismissed in its

entirety. (Id. at 4, 7.)

On June 24, 2024, Brown filed an amended complaint. (ECF No. 24.) Because he

was incarcerated when he began this action, the court must review his complaint to

determine if it is sufficient to proceed. 28 U.S.C. § 1915A.

“On review, the court shall identify cognizable claims or dismiss the complaint,

or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to

state a claim upon which relief may be granted; or (2) seeks monetary relief from a

defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). Although “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) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)), it still must meet minimal standards before the

court may permit it to proceed.

A claim is legally frivolous when it lacks an arguable basis either in law or in

fact. Denton, 504 U.S. at 31; Neitzke, 490 U.S. at 325. Although factual allegations must be

weighed in favor of the plaintiff, that does not mean that the court is required to accept

without question the truth of the plaintiff's allegations. Denton, 504 U.S. at 32. Thus, a

court may dismiss a claim as frivolous if it is “clearly baseless,” “fanciful,” “fantastic,”

“delusional,” “irrational,” “wholly incredible,” or “based on an indisputably meritless

legal theory.” Id. at 32-33. A court may not dismiss a claim as frivolous simply because

“the plaintiff’s allegations are unlikely.” Id.

A claim might not be frivolous or malicious but nonetheless fail to state a claim

upon which relief may be granted and, therefore, be subject to dismissal. In determining

whether a complaint is sufficient to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), the

court applies the same well-established standards applicable to a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). DeWalt v. Carter, 224 F.3d 607, 611

(7th Cir. 2000), abrogated on other grounds by Savory v. Cannon, 947 F.3d 409 (7th Cir.

2020).

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short

and plain statement of the claim showing that the pleader is entitled to relief.”

Although the allegations in a complaint need not be detailed, a complaint “demands

more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading

that offers labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of

further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks, citation, and brackets omitted). The complaint must be sufficiently

detailed “to give the defendant fair notice of what the claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957)) (quotation marks and ellipses omitted).

If the complaint contains well-pleaded, non-frivolous factual allegations, the

court should assume the veracity of those allegations and “then determine whether they

plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. “Determining

whether a complaint states a plausible claim for relief will … be a context-specific task

that requires the reviewing court to draw on its judicial experience and common sense.”

Id.

With the standards set forth in 28 U.S.C. § 1915(e)(2) in mind, the court turns to

the allegations raised in Brown’s amended complaint. Brown alleges that between

September 1, 2019, and September 1, 2023, he was involved in “a personal, intimate

relationship” with his “federal fiduciary,” Penelope Dickson. They had a bank account

together “where she was P.O.A. over the account.” (ECF No. 24 at 2.)

Brown alleges numerous instances in which Dickson refused to disburse money

or provide other assistance to him. (ECF No. 24 at 2-3.) Specifically, he alleges that

Dickson refused to give him money for funeral expenses when various members of his

family passed away. (Id. at 2-3.) Brown also alleges that he was homeless on at least

thirty occasions between September 1, 2019, and September 1, 2023, and that Dickson

repeatedly failed to find housing for him. (Id. at 3.) Finally, he alleges that his weekly

allowances were reduced or discontinued at least 250 times between September 1, 2019,

and September 1, 2023. (Id.) Brown states he believes she “behaved this way out of

HATE CRIME HARASSMENT descrimination [sic[ for me cheating on her and getting

[another woman] pregnant.” (ECF No. 24 at 2.)

Brown alleges that Dickson’s actions were “ill – malice – ‘intentional’ breach of

fiduciary duties, hate crime: harassment and; descrimnation [sic]; and; lost of affection

and; lost of love; and; retailation [sic].” (Id. at 3.)

A foundational matter the court must consider is whether Brown’s amended

complaint provides a basis for a federal court to exercise jurisdiction over this action.

Federal courts have limited jurisdiction, see 28 U.S.C. § 1330 et seq., meaning they can

only hear certain types of claims and only under certain circumstances. One such

circumstance is if a plaintiff seeks relief under a federal statute, known as federal

question jurisdiction. 28 U.S.C. § 1331. Brown checked the box on the court’s amended

complaint form indicating he is “suing for a violation of federal law under 28 U.S.C. §

1331” (ECF No. 24 at 4), but he does not indicate which federal laws he believes apply

and his allegations do not readily call to mind any plausible federal cause of action.

Federal law proscribes certain types of discrimination and retaliation by

employers against employees, see e.g., 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), but these laws

are inapplicable because Dickson was not Brown’s employer.

The legal basis for Brown’s claim for “hate crimes” is also unclear. While there

are federal laws prohibiting the commission of hate crimes, see 18 U.S.C. § 249, such

criminal statutes cannot be enforced by a private party in a civil action. See Chicago Title

& Land Tr. Co. v. Rabin, No. 11-CV-425, 2012 WL 266387, at *4 (N.D. Ill. Jan. 30, 2012)

(concluding that 18 U.S.C. § 249 does not confer a private right of action); see also Linda

R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another.”).

In referring to Dickson as a “federal fiduciary,” Brown calls to mind laws

regarding certain federal benefits programs. Social security beneficiaries may have

another person manage their benefits under what is commonly referred to as the

representative payee program. See Social Security, Representative Payee,

https://www.ssa.gov/payee/. The term federal fiduciary is used by the Department of

Veterans Affairs to describe a person who handles VA benefits on behalf of a veteran.

See Dept. Vet. Aff., Fiduciary, https://www.benefits.va.gov/fiduciary/fiduciary.asp. As

Brown makes no reference to him receiving federal benefits, it is unclear if he is using

the term “federal fiduciary” formally or colloquially as a reference to merely a person in

a fiduciary relationship. There are also federal laws imposing certain fiduciary

obligations on, for example, investment advisers. See Hollerich v. Robert C. Acri, 259 F.

Supp. 3d 806, 815 (N.D. Ill. 2017). But, again, there is no hint that Dickson was an

investment advisor under 15 U.S.C. § 80b-6.

Breach of fiduciary duty is a claim that would arise under state law and therefore

could be asserted only in state court unless there was a separate basis for federal

jurisdiction.

Relying on Brown’s use of the term “federal fiduciary,” the best the court can

cobble together is that perhaps Brown is attempting to allege that he received VA

benefits, Dickson managed them on his behalf, and she did so wrongly.

Congress gives the VA the authority to appoint and manage fiduciaries for

veterans who are unable to manage their own financial affairs. 38 U.S.C. § 5502(a)(1).

The regulations governing veterans benefits also give the VA the authority to manage

fiduciaries, for instance, by requiring them to provide accountings and making

determinations regarding misuse of benefits, as well as the authority to remove

fiduciaries. See 38 C.F.R. §§ 13.280, 13.400, 13.400, 13.500. The regulations further

provide that, subject to certain exceptions, “VA decisions regarding fiduciary matters

are committed to the Secretary of Veterans Affairs’ discretion by law, as delegated to

subordinate officials under this part, and cannot be appealed to the Board of Veterans’

Appeals or any court.” Id. § 13.600. Decisions regarding appointment, removal, and

misuse of benefits by federal fiduciaries are appealable, however, but only to the Board

of Veterans’ Appeals. Id. at § 13.600(a).

Another statute, the Veterans Judicial Review Act, provides that:

The Secretary [of Veterans Affairs] shall decide all questions of law and

fact necessary to a decision by the Secretary under a law that affects the

provision of benefits by the Secretary to veterans or the dependents or

survivors of veterans. Subject to subsection (b), the decision of the

Secretary as to any such question shall be final and conclusive and may

not be reviewed by any other official or by any court, whether by an

action in the nature of mandamus or otherwise.

38 U.S.C. § 511(a). Subsection (b) creates exceptions to the general prohibition against

judicial review and allows certain matters to be reviewed by the U.S. Court of Appeals

for Veterans Claims. Id. §§ 511(b)(4), 7252(a). The Court of Appeals for Veterans Claims

has exclusive review of decisions by the Board of Veterans’ Appeals, which, as indicated

above, is charged with reviewing decisions regarding the appointment, removal, and

misuse of benefits by fiduciaries. Id. § 7252(a). Decisions by the Court of Appeals for

Veterans Claims are reviewable by the U.S. Court of Appeals for the Federal Circuit. Id.

§§ 7252(c), 7292.

Insofar as Brown seeks to challenge a decision by the Secretary of Veterans

Affairs regarding Dickson’s appointment as his fiduciary, he cannot seek relief in this

court. Such decisions are appealable to the Board of Veterans’ Appeals, then the Court

of Appeals for Veterans Claims, and then to the Federal Circuit. See Evans v. Greenfield

Banking Co., 774 F.3d 1117, 1123 (7th Cir. 2014) (The Secretary’s decisions, including “the

appointment and supervision of fiduciaries, are matters ‘affect[ing] the provision of

benefits’…. As a result, they are subject to review only by the Board of Veterans'

Appeals and ultimately by the Veterans Court and Federal Circuit.”) (citations omitted).

Therefore, even if Brown were attempting to allege that Dickson breached her fiduciary

duties in the management of Brown’s VA benefits, he would not have a claim in this

court.

Liberally construing Brown’s amended complaint, the court cannot discern any

plausible federal claim to support the court’s jurisdiction. And because Brown and

Dickson are both citizens of Wisconsin (ECF No. 24 at 1-2), the court would not have

jurisdiction under 28 U.S.C. § 1332.

Because the court has not identified any plausible federal claim over which the

court has jurisdiction, and because there is no basis for the court to exercise jurisdiction

over any potential state law claims raised by Brown, it will recommend that the

amended complaint and this action be dismissed.

IT IS THEREFORE RECOMMENDED that Brown’s amended complaint and

this action be dismissed.

IT IS FURTHER ORDERED that, in accordance with 28 U.S.C. § 636(b)(1)(B)

and (C) and Fed. R. Civ. P. 72(b)(2), any written objections to any recommendation

herein or part thereof shall be filed within fourteen days of service of this

recommendation. Failure to timely object waives a party’s right to review.

Dated at Milwaukee, Wisconsin this 19th day of August, 2024.

WILLIAM E. DUFFI

U.S. Magistrate Judge