Holliday v. Goodell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOSH HOLLIDAY * CIVIL ACTION

VERSUS * NO. 25-264

ROGER GOODELL, ET AL. * SECTION “A” (2)

ORDER AND REASONS

Plaintiff Josh Holliday filed a Complaint and Motion for Leave to Proceed in forma

pauperis on February 20, 2025. ECF Nos. 3, 4. Plaintiff’s filings suggest he asserts claims for

violations of RICO, fraud and sports bribery in violation of 18 U.S.C. § 224. ECF Nos. 3, 3-1, 3-

2. Plaintiff contends that Defendants have defrauded ticket purchasers and viewers by conspiring

with referees to “rig” games and make biased play calls at various games, including the January

26, 2025, game in Kansas City, Missouri. ECF No. 3 ¶ III, at 4-6. Plaintiff contends he has

suffered Post-Traumatic Shock Syndrome from watching the January 26, 2025, game, asserting

that Defendants constitute a RICO enterprise with the alleged favored calls identified as the “overt

acts.” Id. ¶¶ IV, V at 7. Although not styled as a class action, Plaintiff’s caption indicates that he

filed suit on his own behalf and on behalf of millions of other citizens. ECF No. 3 at 1, 5-6.

I. APPLICABLE LAW

A. In Forma Pauperis Standard for Authorization to Proceed Without Payment

A court may authorize the commencement of a civil action without the prepayment of fees

or costs “by a person who submits an affidavit that includes a statement of all assets such [person]

possesses that the person is unable to pay such fees or give security therefor.”1 Whether to permit

or deny an applicant to proceed in forma pauperis is within the sound discretion of the Court.2

1 28 U.S.C. § 1915(a)(1).

2 Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988).

Courts should make the assessment of a plaintiff’s financial ability after considering whether

payment of the filing fee would cause an undue financial hardship.3 This analysis entails a review

of plaintiff’s income sources (including social security or unemployment payments4) and the

demands on her financial resources, including whether expenses are discretionary or mandatory.5

Plaintiff’s application is submitted on the AO 240 Form and indicates that he is retired,

receives $900 as monthly income in social security and/or disability payments, has no significant

assets, has monthly expenses totaling about $650, and has less than $100 in cash or checking or

savings accounts. ECF No. 4 at 1-2. Based on Plaintiff’s affidavit, he has established that he is

financially unable to pay fees in this matter, as required by 28 U.S.C. § 1915.

B. Statutorily Mandated Review

There exists no absolute right to proceed in forma pauperis in federal civil matters; instead,

it is a privilege extended to those unable to pay filing fees when it is apparent that the claims do

not lack merit on their face.6 Section 1915(e)(2)(B) grant the Court authority to summarily dismiss

in forma pauperis complaints if the asserted claims are frivolous or malicious or fail to state a

claim upon which relief may be granted.7 Indeed, the statute specifically mandates that the court

“must sua sponte dismiss [the case] at any time if it determines that the action is frivolous or

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a

3 Prows, 842 F.2d at 140 (citing Smith v. Martinez, 706 F.2d 572 (5th Cir. 1983)).

4 Courts consider social security payments in making the in-forma-pauperis determination. See, e.g., Lewis v. Ctr.

Mkt., 378 F. App’x 780, 784-85 (10th Cir. May 17, 2010) (affirming denial when appellant’s only income sources

were social security and unemployment benefits); Salter v. Johnson, No. 12-738, 2013 WL 550654, *1 (S.D. Miss.

Jan. 18, 2013) (noting income includes social security payments), R.&R. adopted, 2013 WL 55065 (Feb. 12, 2013).

5 Prows, 842 F.2d at 140.

6 See Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969); see also Adepegba v. Hammons, 103 F.3d 383, 387

(5th Cir. 1996) (noting that the revocation of the privilege of proceeding in forma pauperis is not new), abrogated in

part on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015).

7 Tam Vo v. St. Charles Par., No. 10-4624, 2011 WL 743466, at *1-2 (E.D. La. Feb. 3, 2011), R.&R. adopted sub

nom. Vo v. St. Charles Par., No. 10-4264, 2011 WL 740909 (E.D. La. Feb. 22, 2011).

defendant who is immune.”8 This statutory review mandate applies equally to prisoner and non-

prisoner in forma pauperis cases.9

A claim is “frivolous where it lacks an arguable basis either in law or in fact.”10 A claim

“lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if

the complaint alleges the violation of a legal interest which clearly does not exist.”11 A court may

not dismiss a claim simply because the facts are “unlikely.”12 A factually frivolous claim alleges

only facts that are “‘clearly baseless,’ . . . are ‘fanciful,’ ‘fantastic,’ and ‘delusional’ . . . [or] rise

to the level of the irrational or wholly incredible, whether or not there are judicially noticeable

facts available to contradict them.”13 A complaint fails to state a claim on which relief may be

granted when the factual allegations do not rise above a speculative level, with the assumption that

all factual allegations in the complaint are true, even if doubtful.14

C. Pleading Standard

Rule 8(a) of the Federal Rules of Civil Procedure requires a Complaint set forth “sufficient

facts from which the court can determine the existence of subject matter jurisdiction and from

which the defendants can fairly appreciate the claim made against them.”15 While Rule 8’s

pleading standard does not require “detailed factual allegations,” it does demand more than an

8 Amrhein v. United States, 740 F. App’x 65, 66 (5th Cir. 2018) (emphasis added) (citing 28 U.S.C. § 1915(e)(2)(B)).

9 James v. Richardson, 344 F. App’x 982, 983 (5th Cir. 2009) (“Section 1915(e)(2)(B) requires dismissal of frivolous

IFP actions even if those actions are brought by non-prisoner plaintiffs.”); see also Newsome v. EEOC, 301 F.3d 227,

231 (5th Cir. 2002) (applying § 1915(e)(2)(B) to a non-prisoner whose complaint was frivolous).

10 Neitzke v. Williams, 490 U.S. 319, 325 (1989).

11 Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.

1997)).

12 Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992) (citing Denton v. Hernandez, 504 U.S. 25, 32–33 (1992)).

13 Id. (quoting Denton, 504 U.S. at 32-33).

14 Garrett v. Thaler, 560 F. App’x 375, 377 (5th Cir. 2014) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007)).

15 Kinchen v. Sharp, No. 11-1040, 2012 WL 700920, at *2 (E.D. La. Feb. 10, 2012) (quoting Bremer v. Hous. Auth.

of New Orleans, No. 98-2735, 1999 WL 298795, at *1 (E.D. La. May 12, 1999)), R.&R. adopted, 2012 WL 700265

(E.D. La. Feb. 29, 2012).

“unadorned, the-defendant-unlawfully-harmed-me accusation.”16 Moreover, when a plaintiff

alleges fraud, Rule 9 requires that the fraud claim be pleaded with particularity. “At a minimum,

Rule 9(b) requires allegations of the particulars of ‘time, place, and contents of the false

representations, as well as the identity of the person making the misrepresentation and what he

obtained thereby.’”17

Even the complaints of pro se litigants must satisfy Rules 8 and 9 to convince the court

that plaintiff has a colorable claim.18

D. Class Allegations

Amidst the four prerequisites for class certification is a finding that the representative party

can “fairly and adequately protect the interests of the class.”19 Adequacy of class representation

“encompasses class representatives, their counsel, and the relationship between the two.”20 As

sufficient class counsel is required to adequately represent a class, a pro se plaintiff is inadequate

to represent others in a class action.21

A layperson ordinarily does not possess the legal training necessary to protect the interests

of a proposed class, thus courts are reluctant to certify a class represented by a pro se litigant.22

As the Tenth Circuit has explained:

Under Rule 23(a)(4) [of the Federal Rules of Civil Procedure], a class

representative must “fairly and adequately protect the interests of the class.” A

litigant may bring his own claims to federal court without counsel, but not the

16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

17 Crosswell v. Martinez, 120 F.4th 177, 184 (5th Cir. 2024) (quoting Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975

F.2d 1134, 1139 (5th Cir. 1992) (citation omitted)).

18 Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (stating “[a]lthough we treat pro se pleadings more

liberally, some facts must be alleged that convince us that the plaintiff has a colorable claim; conclusory allegations

will not suffice.”).

19 FED. R. CIV. P. 23(a)(4).

20 Stirman v. Exxon Corp., 280 F.3d 554, 563 (5th Cir. 2002).

21 See, e.g., Lindsey v. Aycox, No. 14-260, 2015 WL 13650950, at *1 (S.D. Miss. Jan. 7, 2015) (citing cases) (“[P]ro

se litigants, such as Plaintiffs, cannot adequately represent the interests of a putative class or appear as class

representatives.”).

22 See 7A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 1769.1, at 450 & n.12 (3d ed.

2005) (stating general rule that “class representatives cannot appear pro se,” and citing case law).

claims of others. This is so because the competence of a layman is “clearly too

limited to allow him to risk the rights of others.”23

A pro se plaintiff's tenacity and zeal “are no substitute for the skill and experience which are

needed to prosecute an action on behalf of a class.”24 Therefore, Plaintiff should not be allowed

to pursue this matter as a class action.

II. ANALYSIS

Plaintiff’s in forma pauperis application (ECF No. 4) includes sufficient information to

enable the Court to determine that he is unable to pay fees in this matter, as required by 28 U.S.C.

§ 1915. Based upon the information provided, Plaintiff will be permitted to proceed in forma

pauperis in this proceeding under the provisions of 28 U.S.C. § 1915(a) as to his individual

claim(s). However, given Plaintiff’s status as a pro se litigant acting without counsel, he is not an

adequate class representative to pursue his claims on behalf of others. And although the Court has

permitted the Plaintiff to proceed in forma pauperis, the court must determine whether Plaintiff's

complaint satisfies the requirements of the in forma pauperis statute. Thus, summons will not be

issued pending completion of this Court’s statutorily-mandated review.

Initially, Plaintiff does not allege any facts to suggest that venue on his claim is proper in

this Court. Plaintiff alleges that he is a Florida citizen and claims that Defendants ”rigged” a game

played in Kansas City, Missouri. The general rule is that venue must be established for each

separate cause of action alleged in the complaint.25

23 Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (citations omitted); accord. Powers v.

Clay, No. 11-051, 2011 WL 6130929, at *3 (S.D. Tex. Dec. 8, 2011); Wetzel v. Strain, No. 09-7633, 2009 WL

5064445, at *1 (E.D. La. Dec. 16, 2009); Luna v. Kliebert, No. 09-3853, 2009 WL 2175773, at *1 n.1 (E.D. La. July

17, 2009) (Engelhardt, J.), aff'd, 368 F. App'x 500 (5th Cir. 2010); Sosa v. Strain, No. 06-9040, 2007 WL 1521441, at

*7 (E.D. La. May 22, 2007).

24 Davis v. Jindal, No. 14-555, 2014 WL 1612495, at *1 (E.D. La. Apr. 22, 2014) (quoting MacKenzie v. Loc. 624,

Int’l Union of Operating Eng’rs, 472 F. Supp. 1025, 1033 (N.D. Miss. 1979); and citing Luna, 2009 WL 2175773, at

*1 n.1; Sosa, 2007 WL 1521441, at *7).

25 Asevedo v. NBCUniversal Media, LLC, 921 F. Supp. 2d 573, 589 (E.D. La. 2013) (Africk, J.) (citing McCaskey v.

Cont'l Airlines, Inc., 133 F.Supp. 2d 514, 523 (S.D. Tex. 2001) (“[I]t is well established that in a case involving

Moreover, while Plaintiff accuses Defendants of criminal misconduct, criminal charges

cannot be brought by private individuals. “[A] private citizen lacks a judicially cognizable interest

in the prosecution or nonprosecution of another.”26 As Chief Justice Roberts has noted, “[o]ur

entire criminal justice system is premised on the notion that a criminal prosecution pits the

government against the governed, not one private citizen against another.”27 Nor can a plaintiff

compel a criminal investigation by federal law enforcement agencies by filing a civil complaint.28

The Executive Branch has absolute discretion to decide whether to investigate or prosecute a case,

and such decisions are not subject to judicial review.29

Although Plaintiff cites 18 U.S.C. § 224, he cannot state a civil claim for violation of that

criminal statute. Although the Racketeer Influenced and Corrupt Organization Act (“RICO”)

recognizes a civil RICO claim,30 and Plaintiff cites to RICO, he fails to identify which of the four

substantive violations he asserts. See 18 U.S.C. § 1962(a)-(d). The elements required to state a

claim vary according to the particular RICO claim asserted.31 Regardless of which of the four

RICO sections Plaintiff relies upon, three threshold elements must be met.32 The defendant must

be (1) a person who engages in (2) a pattern of racketeering activity (3) connected to the

acquisition, establishment, conduct, or control of an enterprise.33 A pattern of racketeering activity

multiple defendants and multiple claims, the plaintiff bears the burden of showing that venue is appropriate as to

each claim and as to each defendant.”)).

26 Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

27 Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 278 (2010) (dismissal of writ of certiorari as improvidently granted)

(Roberts, C.J., dissenting).

28 White v. Markey, No. 20-3316, 2020 WL 7481041, at *2 (D.D.C. Dec. 11, 2020) (citing Otero v. U.S. Att’y Gen.,

832 F.2d 141, 141-42 (11th Cir. 1987) (per curiam); Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982)).

29 United States v. Nixon, 418 U.S. 683, 693 (1974) (citations omitted); see also Lefebure v. D’Aquilla, 15 F.4th 650,

654 (5th Cir. 2021).

30 18 U.S.C. § 1964(c).

31 Elliot v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989).

32 Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 242 (5th Cir. 1988).

33 Id.; see also St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009) (citation omitted).

consists of two or more predicate acts, federal or state, that are (1) related and (2) amount to or

pose a threat of continued criminal activity.34

A RICO plaintiff “must plead specific facts, not mere conclusory allegations, which

establish the enterprise,”35 and “plaintiff must plead the specified facts as to each defendant. It

cannot . . . ‘lump[ ] together the defendants.’”36 While Plaintiff’s Complaint includes conclusory

allegations of fraud, conspiracy, and bribery, he fails to set forth any allegations that state

violations of any of the particularized federal fraud, theft, or property crimes,37 constituting

“racketeering activity” as defined in the RICO statute by any particular defendant.38 Further, he

does not allege any specific facts, dates, names, communications or events to support his

conclusory allegations of criminal activity, nor does he explain how these acts constitute

“racketeering” activity or are related to a continued threat of criminal activity. Plaintiff’s broad

use of the term “RICO” is insufficient to state a claim, subjecting his Complaint to dismiss under

28 U.S.C. § 1915. Likewise, the Complaint fails to allege fraud with the particularity required by

Rule 9(b). A pleading satisfies “particularity” when it alleges the “time, place, and contents of the

false representations, as well as the identity of the person making the misrepresentation and what

he obtained thereby.”39

III. CONCLUSION

Plaintiff has established his inability to pay fees under 28 U.S.C. § 1915(a)(1). However,

Plaintiff, as a pro se plaintiff, is not an adequate class representative, subjecting the class action

allegations to summary dismissal under § 1915(e)(2). Further, the Complaint appears to be subject

34 St. Germain, 556 F.3d at 263.

35 Crosswell, 120 F.4th at 184 (quoting Montesano v. Seafirst Com. Corp., 818 F.2d 423, 427 (5th Cir. 1987)).

36 Id. (quoting Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 738 (5th Cir. 2019) (quoting In re MasterCard

Int'l Inc., Internet Gambling Litig., 132 F. Supp. 2d 468, 476 (E.D. La. 2001), aff'd, 313 F.3d 257 (5th Cir. 2002))).

37 See, e.g., 18 U.S.C. §§ 659, 1341, 1344, 1351, 1957.

38 18 U.S.C. § 1961(1).

39 Wallace v. Tesoro Corp., 796 F.3d 468, 480 (5th Cir. 2015) (citation omitted).

to summary dismissal under § 1915(e) due to Plaintiffs failure to allege facts necessary to support

the elements of his claims, including the particularity required to plead a fraud claim under Rule

9(b). Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiff's Motion for Leave to Proceed In Forma Pauperis (ECF

No. 4) is GRANTED;

IT IS FURTHER ORDERED that the Clerk withhold issuance of summons at this time

pending completion of the statutorily mandated review;

IT IS FURTHER ORDERED that, for the reasons set forth above, on or before

WEDNESDAY, April 9, 2025, Plaintiff Josh Holliday SHOW CAUSE why his Complaint

should not be summarily dismissed;

IT IS FURTHER ORDERED that, in response to this show cause order, Plaintiff shall file

a response containing a written statement setting forth the specific facts upon which she relies to

establish a basis for his claims against each Defendant. PLAINTIFF’S FAILURE TO

RESPOND IN WRITING AS DIRECTED HEREIN MAY RESULT IN A

RECOMMENDATION FOR DISMISSAL OF HIS COMPLAINT.

IT IS FURTHER ORDERED that there will be no oral hearing on WEDNESDAY, April

9, 2025, but the matter will be taken under advisement on the written filings on that date.

New Orleans, Louisiana, this 6th day of March, 2025.

UNITED STATES MAGISTRATE JUDGE