Opinion
1:21-cv-240
03-02-2022
JONATHAN NUNEZ, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, Respondent
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, United States Magistrate Judge
I. Recommendation
It is hereby recommended that the Motion for Leave to Proceed in forma pauperis [ECF 5] filed by Plaintiff Jonathan Nunez be granted. It is further recommended Plaintiffs motion for summary judgment [ECF No. 7] be denied and that this action be dismissed for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
II. Report
A. Plaintiffs motion for leave to proceed in forma pauperis
Plaintiff seeks leave to proceed in forma pauperis. ECF No. 4. In his motion, Plaintiff states that he is unable to pay the filing fee associated with this case. Based upon this averment, it appears that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, Plaintiffs motion for leave to proceed in forma pauperis should be granted.
B. Standard of Review
Having been granted leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
To the extent that Plaintiffs filing might be construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, this Court may dismiss the petition prior to service if it plainly appears on its face that the petitioner is not entitled to relief in habeas. See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases. For the same reasons discussed below, Plaintiff is clearly entitled to no relief under § 2254.
C. Background
On August 26, 2021, Plaintiff, a prisoner in the custody of the Pennsylvania Department of Corrections, initiated this action by filing a document styled a "Petition for Writ of Habeas Corpus, Redress of Grievance, and Arbitration." ECF No. 1-1. Plaintiffs filing was accompanied by a motion for leave to proceed in forma pauperis. ECF No. 1.
The allegations in the original Petition were largely incoherent. According to Plaintiff, he initiated this action "to support that I am ... [a] divine, living, flesh & blood human being created by Almighty GOD, am NOT a corporation or a STRAW MAN." ECF No. 1-1 ¶ 1. Although Plaintiff did not identify an underlying criminal ease, he implied that he might have been challenging a state conviction pursuant to 28 U.S.C. § 2254. However, he did not supply any underlying facts relating to that conviction or suggest any potentially viable grounds for relief. Rather, his entire pleading was devoted to nonsensical statements regarding "straw men, " fraudulent bonds, and his averment that Pennsylvania courts "[have] a federal income tax I.D. number" and thus are actually "Federal Municiple (sic) Corporation[s]" without the authority to conduct criminal proceedings. By way of relief, he sought $5,000,000,000.00 in damages, his release from prison, and to have his record cleared of all charges. Id. ¶ 11.
Because the Court could not discern the nature of his claims, it ordered Plaintiff to refile and clarify his petition/complaint by filing an amended pleading. The Court advised Plaintiff that, to the extent that he believed he was "in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), and was seeking traditional habeas corpus relief (such as the reversal of his conviction and his release from prison), he needed to seek such relief pursuant to 28 U.S.C. § 2254. See, e.g., DeVaughn v. Dodrill, 145 Fed.Appx. 392, 394 (3d Cir. 2005) (challenges to the execution or validity of a state court conviction or sentence must be based on § 2254). On the other hand, if Plaintiff was attempting to secure monetary damages against persons acting under color of state law based on "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws," he needed to file a civil complaint asserting those claims pursuant to 42 U.S.C. § 1983.
Plaintiff responded by filing a document styled an "Amended Redress of Grievance, Receiving the Bonds in the Name of the Trust, & Arbitration (Tort 42 U.S.C. § 1983)." ECF No. 5. In the introductory portion of his filing, Plaintiff describes proceedings that took place in the Lehigh County Court of Common Pleas and characterizes this action as an "appeal[] to the UNITED STATES COURT, WESTERN DISTRICT PENNSYLVANIA, DUE TO A SILENT PLEA TAKEN BY THE LEHIGH COUNTY JUDICIAL DISTRICT, on the subject of the bonds, STRAW MAN, Redress of Grievance (Pa.C.S. ART I AND THE U.S.C. ART I), and Arbitration." Id. at 3. Plaintiff again seeks mixed relief in the form of "arbitration in the amount of five billion dollars, my immediate release, my record cleared of all charges, and the amount from the bonds and arbitration to [be] placed on a debit card upon my immediate release." Id. at 7.
The heart of Plaintiff s claim has not changed in his amended pleading, nor has it become easier to decipher. He contends that he is a "diving, living, flesh & blood human being, created by Almighty God," and has "never been nor will I be a corporation." Id. at 4. He asserts that a corporation "is an artificial person (STRAW MAN) or legal entity created by or under the authority of the laws of a state" and that state penal codes "hold[] the real man liable for the conduct of his commercial PERSON in ALL CAPITAL LETTERS (STRAW MAN), hence all crimes are commercial." Id. at 5. Because a person can not be a corporation, Plaintiff posits that only a person's "corporate entity" can be charged with a crime, not the "flesh & blood human being." Id. at 7. Plaintiff further states:
This proves that in order to be appointed a attorney, or even to hire one, one must be made into a corporation, the STRAW MAN. They will aid in the "discharge" of the commercial charges that is laid upon the corporate fiction/entity, NUNEZ, JONATHAN, or JONATHAN NUNEZ. This means on the complaint, information, and indictment is not me. In order to make the divine, living, flesh & blood human being a corporation or the STRAW MAN, the court has to take bonds out in my name without my consent, or knowledge. Fraud is committed.Id. at 6. Plaintiff concludes, based on the foregoing, that the state only has the authority to incarcerate his straw man alter-ego, a "fiction ... made up to do transactions," rather than his "flesh & blood" human form. Id. at 7-8.
D. Analysis
Plaintiffs argument, to the extent that it is coherent, invokes the ideologies of the so-called "flesh and blood" movement. As described in a recent decision in the Middle District of Pennsylvania rejecting similar claims, Plaintiff "parrots the language of the now infamous 'flesh and blood' movement, similar to the beliefs and rhetoric espoused by the American Moorish and Sovereign Citizen movements." Urgent v. Dennis Urgent(c)TM, 2020 WL 5489194, at *1 (M.D. Pa. June 18, 2020) (quoting Weese v. Maryland, 2017 WL 8780880, at *1 (D. Md. Dec. 8, 2017)). Adherents to the "flesh and blood" movement believe that a person has "two distinct versions of himself, a 'flesh-and-blood' natural man and a legal person-the vessel." Id. at *4. See also Monroe v. Beard, 536 F.3d 198, 203 n. 4 (noting that "flesh and blood" advocates believe "that a person has a split personality: a real person and a fictional person called the 'strawman.'"). They theorize that the government "has power only over the strawman and not over the live person, who remains free." Id. Therefore, "the real person can demand that government officials pay enormous sums of money to use the strawman's name or, in the case of prisoners, to keep him in custody." Id.
Relying on this doctrine, Plaintiff seeks to avoid the consequences of his conviction by suggesting that he exists as two separate legal entities and that, because the Commonwealth of Pennsylvania does not have jurisdiction over both, it must release him and pay him damages. Courts have routinely dismissed nonsensical claims of this nature as patently frivolous. See, e.g., Id. at *4 (noting that "flesh and blood" claims "have been uniformly rejected as legally frivolous by this and other Courts across the country"); Smithson v. Koons, 2017 WL 3016165, at *1 n.l (M.D. Pa. June 26, 2017) (describing similar strawman and contract-based claims and recommending that the complaint be dismissed as frivolous and for failure to state a claim); Tirado v. New Jersey, 2011 WL 1256624, at *4-5 (D.N.J. Mar. 28, 2011) (characterizing "strawman" claims as a "delusory contrivance" with "absolutely no legal basis"); Ferguson-El v. Virginia, 2011 WL 3652327, at *3 (E.D. Va. Aug. 18, 2011) ("Ferguson-El seeks to avoid the consequences of his criminal conviction by suggesting he exists as two separate legal entities and that the State of Virginia does not have jurisdiction over both entities and thus must release him, "the living breathing Man" ... and pay him damages. Such a theory is legally frivolous."); Muhammad v. Smith, 2014 WL 3670609, at *2-3 (N.D. N.Y. July 23, 2014) (same). See also Weese, 2017 WL 8780880, at *2 (collecting cases). The same outcome is warranted here.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Plaintiffs motion for summary judgment [ECF No. 7] be denied and that this action be dismissed for failure to state a claim in accordance with 28 U.S.C. § 1915(e).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).