Opinion
SA-24-CV-11-JKP (HJB) SA-24-CV-12-JKP (HJB) SA-24-CV-13-JKP (HJB) SA-24-CV-14-JKP (HJB) SA-24-CV-15-JKP (HJB) SA-24-CV-16-JKP (HJB) SA-24-CV-17-JKP (HJB)
03-22-2024
AMBER MARIE DIALE Plaintiff, v. STATE OF VIRGINIA, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry Bemporad United States Magistrate Judge
To the Honorable United States District Judge Jason K. Pulliam:
Before the Court is the status of the above cases, which were referred to the undersigned for disposition of Plaintiff's applications to proceed in forma pauperis (“IFP”) and for review of her proposed complaints. (See Text Entry dated January 4, 2024 .) (See SA:24-CV-11, Text Entry dated January 23, 2024; SA-24-CV-I2, Docket Entry 4; SA-24-CV-13, Docket Entry 3; SA-24-CV-14, Text Entry dated January 4, 2024; SA-24-CV-15, Text Entry dated January 23, 2024; SA-24-CV-16, Docket Entry 4; and SA:24-CV-17, Text Entry dated January 4, 2024.)
Having previously ordered Plaintiff to show cause why her complaints should not be dismissed as frivolous or for failure to state a claim for which relief could be granted, and in light of her failure in each of the above cases to comply with the Court's orders to show cause by amending her complaints in each, the undersigned will recommend that Plaintiff's complaints in SA;24-CV-11-JKP, SA-24-CV-12-JKP, SA:24-CV-13-JKP, SA:24-CV-14-JKP, SA:24-CV-15-JKP, SA:24-CV-16-JKP, and SA:24-CV-17-JKP be DISMISSED WITH PREJUDICE as frivolous and for failure to state a claim for which relief could be granted.
I. Applicable Law.
Title 28 U.S.C. § 1915(e)(2) requires the Court to review IFP cases, and to dismiss a complaint if the Court determines that “the action ... is frivolous or malicious,” or that it “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). This includes when “the facts alleged are ‘fantastic or delusional'” or when “the legal theory upon which a complaint relies is ‘indisputably meritless.'” Eason v. Thaler, 14 F.3d 8, 9 n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327-28). To present a claim, a complaint must plead “enough facts to state a claim to 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). While the complaint need not contain detailed factual allegations, it must contain enough factual allegations to “raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. A plaintiff must present more than labels, conclusions, or formulaic recitations of elements to avoid dismissal. Id.
IL Discussion.
In each of the above cases, the allegations in Plaintiff's complaints are frivolous and fail to state any claim upon which relief can be granted. In each case, Plaintiff purports to file suit against eight states, the United States Army, and the United States Navy. (See Docket Entries 1, at 1.) The documents Plaintiff attached as her purported complaints are riddled with meritless and contradictory allegations, including (1)that she is a “sovereign citizen” entitled to diplomatic immunity (SA:24-CV-17, Docket Entry 1-1, at 1-4); (2) that she represents the United States of America in a qui tam action (id.); (3) that this Court is a grand jury indicting the Defendants for criminal offenses (SA:24-CV-11, Docket Entry 1-1, at 1, 11); (4) that she represents a class of children kidnapped by the government (SA:24-CV-12, Docket Entry 1-1, at 2, 4-6); (5) that this Court is a North Carolina state court (SA:24-CV-13, Docket Entry 1-1, at 1-15); (6) that this Court lacks jurisdiction over her because it is actually a “military tribunal” or a “private, profit corporation” (SA:24-CV-14, Docket Entry 1-1, at 1-2); (7) that she is entitled to a protective order pursuant various statutes and the Federal Rules of Criminal Procedure (SA:24-CV-15, Docket Entry 1-1, at 1-8); and (8) that the Court has no personal jurisdiction over her (SA:24-CV-16, Docket Entry 1-1, at 1).
See Watson v. Tex. State Univ., 829 Fed.Appx. 686 (5th Cir. 2020) (per curiam) (affirming dismissal of claims based on legal theories associated with the sovereign citizen movement as ‘frivolous' and ‘entirely without merit.'”); Westfall v. Davis, No. 7:18-CV-00023-0-BP, 2018 WL 2422058, at *2 (N.D. Tex. May 4, 2018) (“Sovereign-citizen legal arguments ... are indisputably meritless.”), report and recommendation adopted, No. 7:18-CV-023-O-BP, 2018 WL 2414794 (N.D. Tex. May 29, 2018).
See United States ex rel. Paul v. Abbot, No. SA-23-CV-01233-OLG, 2023 WL 8494392, at *2 (W.D. Tex. Dec. 6, 2023) (“[A]n unlicensed individual proceeding on his own behalf may not prosecute a qui tam action on behalf of the United States.”); Georgakis v. III. State. Univ., 722 F.3d 1075,1077 (7th Cir. 2013) (“[T]o maintain a suit on behalf of the government, the relator... has to be either licensed as a lawyer or represented by a lawyer.”).
The undersigned previously found that each of the complaints in these cases were frivolous and failed to state any claims for which relief could be granted, and ordered Plaintiff to amend her each of her complaints in order to show cause why her cases should not be dismissed. (See SA:24-CV-11, Docket Entry 4; SA-24-CV-12, Docket Entry 5; SA-24-CV-13, Docket Entry 4; SA-24-CV-14, Docket Entry 3; SA-24-CV-15, Docket Entry 4; SA-24-CV-16, and Docket Entry 5; SA:24-CV-17, Docket Entry 4.) The order warned Plaintiff that failure to comply with the Court's show cause order by amending her complaints would subject them to dismissal as frivolous and for failing to state a claim. (See SA:24-CV-11, Docket Entry 4; SA-24-CV-12, Docket Entry 5; SA-24-CV-13, Docket Entry 4; SA-24-CV-14, Docket Entry 3; SA-24-CV-15, Docket Entry 4; SA-24-CV-16, Docket Entry 5; and SA:24-CV-17, Docket Entry 4.)
In each case, Plaintiff responded not by amending her complaint as ordered but, rather, by filing a motion to “withdraw[ ]her previously filed Motion to Amend.” (See SA:24-CV-11, Docket Entry 8; SA-24-CV-12, Docket Entry 9; SA-24-CV-13, Docket Entry 8; SA-24-CV-14, Docket Entry 7; SA-24-CV-15, Docket Entry 8; SA-24-CV-16, Docket Entry 9; SA:24-CV-17, Docket Entry 8.) However, Plaintiff had filed no motions to amend in any of her cases; accordingly, the undersigned denied each motion as moot, but in light of Plaintiff's pro se status, it extended the deadlines for her to amend her complaints to March 8, 2024. (See SA:24-CV-11, Docket Entry 9; SA-24-CV-12, Docket Entry 10; SA-24-CV-13, Docket Entry 9; SA-24-CV-14, Docket Entry 8; SA-24-CV-15, Docket Entry 9; SA-24-CV-16, Docket Entry 10; and SA:24-CV-17, Docket Entry 9.)
Plaintiff's deadlines have passed and she has yet to file an amended complaint, as ordered, in any of her cases. In these circumstances, each of Plaintiff's complaints should be dismissed with prejudice.
The Court notes that mail has been returned as undeliverable in some of these cases, each time as a result of Plaintiff's moving without providing any forwarding address or alerting the Court to her new mailing address. (See SA-24-CV-12, Docket Entry 11; SA-24-CV-15, Docket Entry 10; SA-24-CV-16, Docket Entry 11; SA:24-CV-17, Docket Entry 10.) But this in no way militates against dismissal, as it was Plaintiff's duty to keep the Court apprised of her address. See, e.g, Juarez-Lucio v. Guerra, No. 7:23-CV-00127, 2023 WL 6850592, at *3 (S.D. Tex. Sept. 27, 2023) C‘[T]he failure of a pro se litigant to notify the district court of an address change may be considered by the district court as an additional cause for dismissal for failure to prosecute.”) (quoting Lewis v. Hardy, 248 Fed.Appx. 589, 593 n.l (5th Cir. 2007)), report and recommendation adopted, No. 7:23-CV-00127, 2023 WL 6850018 (S.D. Tex. Oct. 17, 2023). This was made clear to Plaintiff at the opening of each of her cases: “[Y]ou must keep the court informed of your current address throughout the pendency of your case. Failure to do so may result in dismissal of your case for want of prosecution.” (SA:24-CV-11, Docket Entry 2; SA-24-CV-12, Docket Entry 2; SA-24-CV-13, Docket Entry 2; SA-24-CV-14, Docket Entry 2; SA-24-CV-15, Docket Entry 2; SA-24-CV-16, Docket Entry 2; and SA:24-CV-17, Docket Entry 2.)
III. Recommendation.
Based on the foregoing, I RECOMMEND that each of Plaintiff's complaints be DISMISSED WITH PREJUDICE.
IV. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm 'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335,340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).