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 Ex Parte/Consent Motion for Leave to

Proceed in forma pauperis on February 20, 2025. ECF Nos. 3, 4. Consistent with the duties

imposed by 28 U.S.C. § 1915(a) and (e)(2)(B), the Court ordered that summons not be issued until

completion of the statutorily mandated review. ECF No. 5. On March 6, 2025, I issued an Order

requiring Plaintiff to file a written response setting forth the specific facts upon which he bases his

claims, with a deadline of Wednesday, April 9, 2025, in accordance with 28 U.S.C. § 1915(e)(2).

The Order further advised Plaintiff that his failure to respond in writing as directed may result in

dismissal of his complaint. The record does not reflect any filing by Plaintiff in response to my

March 6, 2025, Order.

I. PLAINTIFF’S CLAIMS

Plaintiff appears to assert 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 football games, including the January 26, 2025, NFL 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 seeks to file suit on his own behalf

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

The Court’s March 6, 2025 Order explicitly instructed Plaintiff to submit a response

containing specific facts upon which he relies to establish Civil RICO and fraud claims, as

necessary to determine whether the complaint satisfies the requirements of federal law, as required

by the in forma pauperis statute. The Order also placed Plaintiff on notice that his failure to

comply with the order may result in the dismissal of his complaint.

II. APPLICABLE LAW

A. 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.1 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.2 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

defendant who is immune.”3 This statutory review mandate applies equally to prisoner and non-

prisoner in forma pauperis cases.4

1 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).

2 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).

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

4 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).

A claim is “frivolous where it lacks an arguable basis either in law or in fact.”5 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.”6 A court may

not dismiss a claim simply because the facts are “unlikely.”7 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.”8 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.9

B. 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.”10 While Rule 8’s

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

“unadorned, the-defendant-unlawfully-harmed-me accusation.”11 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

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

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

1997)).

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

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

9 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)).

10 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).

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

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

obtained thereby.’”12

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

that plaintiff has a colorable claim.13

C. 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.”14 Adequacy of class representation

“encompasses class representatives, their counsel, and the relationship between the two.”15 As

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

to represent others in a class action.16

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.17

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

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.”18

12 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)).

13 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.”).

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

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

16 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.”).

17 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).

18 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).

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.”19

III. ANALYSIS

As a pro se litigant, Plaintiff would generally be considered inadequate to represents others

in this purported class action, and he has failed to show otherwise. Further, Plaintiff’s claim under

18 U.S.C. § 224 is frivolous because he cannot state a civil claim for violation of that criminal

statute. Likewise, Plaintiff fails to allege fraud with the particularity, as required by Rule 9(b).

“Particularity” requires the complaint to 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.”20

The requirements to state a civil RICO claim vary according to the particular provision

under which the RICO claim is asserted.21 Regardless of which of the four RICO sections Plaintiff

relies upon, three threshold elements must be met.22 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.23 A pattern of racketeering activity 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.24 A RICO plaintiff “must plead specific facts, not mere conclusory allegations,

which establish the enterprise,”25 and “plaintiff must plead the specified facts as to each defendant.

19 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).

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

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

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

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

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

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

It cannot . . . ‘lump[ ] together the defendants.’”26 While Plaintiff’s Complaint includes conclusory

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

violations of any of the particularized fraud, theft, or property crimes,27 constituting “racketeering

activity” as defined in the RICO statute by any particular defendant.28 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.

In a final effort to provide Plaintiff an opportunity to show cause why his complaint should

not be dismissed, I am issuing this Report and Recommendation to the presiding United States

District Judge. Plaintiff is advised that he may object to this Report and Recommendation within

fourteen (14) days from the date of service of same. It is suggested to Plaintiff that any objection

should contain a short summary of the reasons why he failed to comply with the court’s previous

order. Plaintiff is further advised that any objection should be in writing and filed with the Clerk

of the United States District Court, Eastern District of Louisiana, 500 Poydras Street, New Orleans,

Louisiana 70130, on a written document containing the caption of this lawsuit.

Plaintiff is advised that failure to file written objections to the Magistrate Judge’s Report

and Recommendation may, and probably will, result in dismissal of his case. A party’s failure to

file written objections to the proposed findings, conclusions, and recommendation in a magistrate

judge’s report and recommendation within fourteen (14) days after being served with a copy shall

bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to

26 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))).

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

28 18 U.S.C. § 1961(1).

proposed factual findings and legal conclusions accepted by the district court, provided that the

party has been served with notice that such consequences will result from a failure to object.”°

IV. CONCLUSION

Plaintiff's Complaint is subject to summary dismissal under § 1915(e)(2)(B) as frivolous

and otherwise for failure to state a claim for which relief can be granted. Despite being advised

that his failure to respond to the Show Cause Order could result in summary dismissal, Plaintiff

failed to comply and has not submitted a written statement setting forth the specific facts

supporting his cause(s) of action.

RECOMMENDATION

IT IS RECOMMENDED that Plaintiff's complaint be DISMISSED pursuant to 28

U.S.C. § 1915(e)(2) as frivolous and otherwise for failure to state a claim for which relief can be

granted.

IT IS FURTHER RECOMMENDED that Plaintiff's complaint be DISMISSED for

failure to prosecute pursuant to FED. R. CIv. P. 41(b).

New Orleans, Louisiana, this 21st day of April, 2025.

UNITED STATES MAGISTRATE JUDGE

29 Douglass vy. United Servs. Auto. Assn., 79 F.3d 1415, 1430 (Sth Cir. 1996). Douglass referenced the previously

applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was

amended to extend the period to fourteen days.