Opinion
C. A. 1:21-1532-MGL-SVH
05-27-2021
Brett-Andrew House of Nelson, Petitioner, v. Kenneth Murray Plotz; David Waite; Seth Ryan; Dan Hotsenpiller; Judiciary Courts for the State of Colorado; State of Colorado, Respondents.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Brett Andrew Nelson (“Petitioner”), proceeding pro se and in forma pauperis, filed a petition for ex parte writs of prohibition, estoppel, mandamus, and execution against Kenneth Murray Plotz, David Waite, Seth Ryan, Dan Hotsenpiller, Judiciary Courts for the State of Colorado, and State of Colorado (collectively “Respondents”). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge.
Petitioner has provided no legal authority to support his argument that this matter should be considered ex parte.
I. Factual and Procedural Background
On April 26, 2021, Petitioner filed a petition to compel an arbitration award in this court. See Nelson v. Burgenmeister, C. A. No. 1:21-1292-MGL (“Nelson I”). On May 12, 2021, the undersigned issued a Report and Recommendation (“Report”) opining Petitioner had not provided a valid contract containing an arbitration clause, noting several irregularities and potential defects in the arbitration award, and citing cases from other jurisdictions addressing the same and similar claims against Petitioner. Nelson I at ECF No. 11.
A district court may take judicial notice of materials in the court's own files from prior proceedings. See United States v. Parker, 956 F.2d 169, 171 (8th Cir. 1992) (the district court had the right to take judicial notice of a prior related proceeding); see also Fletcher v. Bryan, 175 F.2d 716 (4th Cir. 1949).
On May 24, 2021, Petitioner filed the instant petition. Respondents appear to be judges or attorneys from the Colorado's Seventh Judicial District, as well as the State of Colorado and the Colorado Judiciary. Although the petition is difficult to understand, it appears Petitioner is requesting this court (1) prohibit Respondents from exercising jurisdiction over him; (2) require the State of Colorado to comply with the purported arbitration orders related to various unspecified individuals, some of which are attached to the petition; and (3) enforce or award Petitioner's claim of $24,570,000 based on 378 hours in which he was incarcerated. [ECF No. 1 at 24-25].
II. Discussion
A. Standard of Review
The petition is filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
B. Analysis
1. Frivolous Filings
The petition lacks sufficient factual allegations to state any plausible claims against Respondents, as there are virtually no allegations regarding the actions of any individual Respondent. Further, the undersigned has previously noted the deficiencies with the underlying arbitration agreement upon which Petitioner relies. See ECF No. 1-1; Nelson I at ECF No. 11. Instead, the petition contains a mixture of antiquated legalese and nonsensical statements that fail to state a right to relief. Federal courts are not required to be “mind readers” or advocates for pro se litigants when construing pro se pleadings, see Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), and the court may dismiss a complaint as frivolous where it lacks an arguable basis in law or in fact. Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452-53 (4th Cir. 2012) (noting a federal court lacks subject matter jurisdiction over a complaint raising claims “‘so insubstantial, implausible . . . or otherwise completely devoid of merit as not to involve a federal controversy'”) (citation omitted). As the petition fails to state facts sufficient for the court to provide relief, it is subject to summary dismissal. See Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996) (statute allowing dismissal of in forma pauperis claims “encompasses complaints that are either legally or factually baseless”).
2. Writ of Prohibition
A writ of prohibition is “[a]n extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a nonjudicial officer or entity from exercising a power.” Black's Law Dictionary (11th ed. 2019). This Court is not an appellate court, and therefore it cannot grant a writ of prohibition. Moreover, “[a] writ of prohibition is a drastic and extraordinary remedy which should be granted only when the petitioner has shown his right to the writ to be clear and indisputable and that the actions of the court were a clear abuse of discretion.” In re Gadsden, 689 Fed.Appx. 756 (4th Cir. 2017). “Because it is a drastic remedy, a writ of prohibition should only be granted when the petitioner's right to the requested relief is clear and indisputable, and there are no other adequate means of relief[.]” Id. (internal citations omitted). Here, Petitioner has failed to demonstrate that he is entitled to a writ of prohibition.
3. Writs of Mandamus, Estoppel, Execution
Plaintiff's request for a writ of mandamus must be denied. Under 28 U.S.C. § 1361, federal district courts are granted “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Thus, on its face, § 1361 extends federal mandamus jurisdiction only to federal officers or employees. See United States v. Oncology Assocs., 198 F.3d 502, 510 (4th Cir. 1999). Further, the “all writs statute, ” 28 U.S.C. § 1651, is limited to cases where federal courts are acting in aid of their respective jurisdictions. See 28 U.S.C. § 1651; Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587-88 nn.2-4 (4th Cir. 1969). As Petitioner has not alleged that Respondents are federal employees, this court lacks jurisdiction under §§ 1361 and/or 1651 to grant the requested relief. See In re Ridgway, No. 95-8002, 1995 WL 227268, at *1 (4th Cir. Apr. 18, 1995) (“This Court will not direct the action of state actors through mandamus.”); Moye v. Clerk, DeKalb Cnty. Sup.Ct., 474 F.2d 1275, 1275-76 (5th Cir. 1973) (holding federal courts do not have original jurisdiction over mandamus actions to compel an officer or employee of a state to perform a duty owed to the petitioner); see also In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001) (same; collecting cases).
Further, to the extent Plaintiff seeks a writ of execution, he has failed to provide a valid court order for the court to order be enforced.
4. Sanctions Against Petitioner
As detailed in the Report in Nelson I, Petitioner has filed multiple other lawsuits in other courts, some seeking to confirm the same alleged final arbitration order he references in ECF No. 1-1 and some resulting in numerous warnings and restrictions being levied against Petitioner. See, e.g., Brett-Andrew: House of Nelson v. Jackson, C/A No. 1:20-069-H-BU, 2021 WL 409999, at *1 (N.D. Tex. Feb. 5, 2021) (dismissing for lack of subject-matter jurisdiction Petitioner's action seeking to confirm an alleged $20,000,000 arbitration award against Respondents); Nelson v. Talbot et al., C/A No. 1:19-03643-LTB-GPG, 2020 WL 9432992 (D. Colo. March 6, 2020) (same); Brett Andrew: House of Nelson v. Talbot, C/A No. 20-01053-LTB-GPG, 2020 WL 7064561 (D. Colo. Dec. 1, 2020), aff'd sub nom. Andrew v. Talbot, 833 Fed.Appx. 473 (10th Cir. 2021) (same); see also Brett Andrew: House of Nelson v. Babcock, C/A No. 20-03506-GPG, 2020 WL 7064564, at *2-4 (D. Colo. Nov. 30, 2020), aff'd sub nom. Andrew v. Babcock, 834 Fed.Appx. 471 (10th Cir. 2021) (summarizing Petitioner's litigation history in Colorado and imposing filing restrictions).
In addition to the cases cited above, Plaintiff recently sought to confirm the same final arbitration order at issue in Nelson I. See Nelson v. Jackson, C. A. No. 3:20-28-CAR, Dkt. No. 58 at 5 (M.D. Ga. Jan. 21, 2021). The court discussed concerns about the alleged final arbitration order and about “the legitimacy of Sitcomm Arbitration Association and its dubious arbitrations awards.” See Id. at 5-6. In dismissing Plaintiff's suit, finding no valid, enforceable contract or arbitration agreement, the court noted as follows:
Plaintiff is a seasoned and prolific filer of abusive and meritless lawsuits against these Defendants and other Colorado officials. Since 2017, Plaintiff has brought at least 34 lawsuits against Colorado state court judges and state courts. None have been successful. Indeed, one Colorado state court has sanctioned Plaintiff and issued a pre-filing injunction because of his abusive and frivolous filings there. Moreover, Plaintiff has filed multiple lawsuits seeking to confirm the same or similar bogus “arbitration awards” issued by Sitcomm. Every case has been dismissed, with some judges issuing Plaintiff stern warnings to stop his frivolous pursuit. Now Plaintiff has brought his campaign against these Defendants to this Court.Id. at 8-9 (footnotes omitted).
Accordingly, the undersigned recommends summary dismissal of Plaintiffs case and that the district judge issue sanctions against Petitioner, potentially including a strike pursuant to 28 U.S.C. § 1915.
The undersigned rejects Petitioner's argument that “because this is a post-trial summary process that is in the common law jurisdiction, the judiciary is prohibited from assigning a magistrate.” [ECF No. 1 at 6; see also ECF No. 4 (“21cv1532 is NOT a civil action but is a petition for Absolute Original Prerogative writs of right . . . and IS an ex parte post-trial summary motion process that is not open to magistrate or judicial review”) (emphasis in original). As stated above, the court must dismiss a complaint, or portion thereof, that 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 from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). Petitioner has failed to provide evidence or argument, nor is the court aware of any, as to why he should be exempt from these requirements in this instance.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the petition be dismissed with prejudice and that sanctions be entered against him.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”