Lewis v. Court Registry Investment System et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

D. Colo.June 9, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 17-CV-01139-STV KENNETH WILLIAM LEWIS, Plaintiff, v. COURT REGISTRY INFORMATION SYSTEM, ADMINISTRATIVE OFFICE OF UNITED STATES COURTS, JAMES C. DUFF, Director of the Administrative Office of U.S. Courts, OFFICE OF THE STATE COURT ADMINISTRATOR, GERALD A. MARRONEY, Administrator, and WALKER STAPLETON, Colorado State Treasurer, Defendants. MOTION TO DISMISS BY DEFENDANT DUFF AND ADMINISTRATIVE OFFICE OF UNITED STATES COURTS The United States has removed this pro se action from El Paso County District Court. Plaintiff’s arguments resemble those made before other Courts by self-described “sovereign citizens.” Similar incoherent arguments have been consistently rejected in numerous jurisdictions, as they should be here. The United States seeks to dismiss this action as to both federal defendants. BACKGROUND On December 22, 2016, Plaintiff filed a Motion in the District Court for the District of El Paso, Colorado. Plaintiff titled the filing “Show Cause” and captioned the case as “Lewis, Kennth-William - settlor/beneficiary v. Court Registry Investment System - Quai-Trustee.” Doc. 1-2 at 4. In the civil cover sheet, Plaintiff indicated this was a “class action, domestic relations case, juvenile case, mental health case, probate case, water law case, forcible entry and Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 1 of 11 2 detainer, C.R.C.P. 106, C.R.C.P. 120, or other similar expedited proceeding.” Id. at 2. The Motion, which included an attached “Affidavit” and “Private Documents” including, among other things, his apparent birth certificate, primarily contains nonsensical rambling descriptions of an Illinois “trust” to which the Plaintiff claims to be the grantee and beneficiary. Doc. 1-2 at 8- 11. It is difficult to ascertain any actual allegation from the Motion, however it appears Plaintiff is alleging: 1) That funds held by the trust were “remitted to the registry” of the court and are in the defendants’ possession or control (id. at 9); 2) That the defendants have breached a duty of care in some act related to the trust (id. at 10); and 3) That the Plaintiff is entitled to the trust’s res (id. at 10-11). The relief apparently sought by the Plaintiff is 1) Compell [sic] the appropriate or primary Trustee to appear at the hearing ‘in personam’ 2) Provide the Plaintiff a copy of the NCIC1 report to determine what trust property is memorialized on that document that will be extinguished 3) Require the Trustees and/or Respondents to provide ‘full accounting’ of each docket in their possession, and remand it to the Court 4) Merge titles on all trust property detained by the Respondents 5) All remaining proceeds after expenses are to be remanded to the court 6) I require the Court to appoint a new Trustee and arrange a “Special Trust” to dispurse [sic] funds for the Beneficiary Lewis, Kenneth William for all bills, invoices, accounts, life maintenance, all expenses until the trust funds have been depleted, and then close the trust 7) All other equitable relief this Honorable Court deems appropriate. Id. at 24. 1 As noted in the Motion, Plaintiff was a federal criminal defendant prosecuted in the Eastern District of Ohio in case number Case No. 1:02-cr-32-SAS-1. It is unclear how Plaintiff’s criminal conviction relates to this case. Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 2 of 11 3 Plaintiff also asks to “[s]how cause why my private rights should co-mingle with the rights of enemies, rebels and belligerents in the Public, or be it Resolved this hearing shall be sealed in Ex Parte and held in Exclusive Equity.” Id. at 4. On March 27, 2017, Plaintiff filed in state court several documents seeking default judgment, including two unsigned “stipulations.” Doc. 1-4. On the same day the state court ordered that Plaintiff serve defendants in order to proceed with the case. Doc. 1-5. On April 7, 2017, Plaintiff served the AOUSC in Washington D.C. To date, the United States Attorney’s Office for the District Colorado has not been served.2 Plaintiff did not name a federal defendant in the original state court case caption. However, because he served the AOUSC, and because the director of that agency, James C. Duff, is named in the body of the Motion, the United States removed this case to Federal District Court on May 8, 2017. Doc. 1. On May 31, 2017, Plaintiff filed a “Petition for Ruling,” in which Plaintiff asked the Court to “make a ruling on the following question. . . . Is there any defense against the exercise of my right to redemption? If so, how?. . . .” Doc. 7. As with all of Plaintiff’s state court filings, the document is largely incoherent. This case should be dismissed for three reasons. First, Plaintiff lacks Article III standing to bring this suit. Second, sovereign immunity bars this suit. Third, Plaintiff has wholly failed to state a claim upon which relief can be granted. 2 Although Plaintiff has not effectuated proper service under Fed. R. Civ. P. 4, Defendants believe proper service will not assist in the prosecution of this case as there is clearly no subject matter jurisdiction. For that reason, the United States waives service on behalf of the AOUSC and James C. Duff in his official capacity. Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 3 of 11 4 ARGUMENT I. THE COURT LACKS SUBJECT MATTER JURISDICTION. A. Plaintiff Lacks Article III standing. Plaintiff lacks standing to bring this suit. Article III of the Constitution limits the jurisdiction of the federal courts to the resolution of “Cases” and “Controversies.” U.S. Const. art. III, § 2. As an “irreducible constitutional minimum of standing,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), a plaintiff is required to establish “that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan, 504 U.S. at 560). Plaintiff cannot satisfy any of these three requirements. Plaintiff lacks “injury-in-fact,” the first requirement of Article III standing, because he has not alleged any facts that would demonstrate the “invasion of a legally protected interest.” Lujan, 504 U.S. at 560. Indeed, Plaintiff does not allege any specific injury whatsoever. He merely claims that he is a “Beneficiary” of funds supposedly held by the Defendants and asks for an order to show cause as to why Plaintiff’s rights don’t “comingle with the rights of enemies, rebels and belligerents in the Public, or be it Resolved this hearing shall be sealed in Ex Parte and held in Exclusive Equity.” Doc. 1-2 at 4. Plaintiff’s filings are unintelligible and he has not identified any facts that would demonstrate an invasion of a legally protected interest. Nor can plaintiff satisfy the second requirement for Article III injury, that his alleged injury is fairly traceable to the Defendants. Absent from the complaint is any allegation that Director Duff or any other employee of the United States personally caused Plaintiff any particular injury or that the he participated in any conduct of which Plaintiff complains. Indeed, Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 4 of 11 5 Plaintiff fails to identify any actors or conduct that is traceable to any injury. His filings are nonsensical. Plaintiff also cannot establish the third requirement of Article III standing - that his alleged injuries are redressable through this lawsuit. It is unclear what injury, if any, Plaintiff is alleging to have suffered. Consequently, how that potential injury is traceable to anyone, or whether it is redressable through this law suit, is a mystery. In sum, the complaint should be dismissed for lack of Article III standing because plaintiff cannot satisfy any of its requirements. This is not a justiciable case or controversy. B. Plaintiff cannot establish a waiver of sovereign immunity. “Sovereign immunity protects the United States and its agencies from being sued without their consent.” Poche v. Joubran, 644 F.3d 1105, 1108 (10th Cir. 2011); accord, e.g., James v. United States, 970 F.2d 750, 753 (10th Cir. 1992) (“The United States may not be sued unless it waives immunity from suit.”) (citing United States v. Dalm, 494 U.S. 596, 608 (1990)). “[W]aivers of sovereign immunity exposing the United States to suit must be clear and unequivocal.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1186 (10th Cir. 2010) (noting the “legion of controlling cases” supporting the requirement of “clear and unequivocal” waiver) (citing Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text[.]”)). If a waiver of sovereign immunity “is not unequivocal from the text, the government retains its sovereign immunity.” United States v. Murdock Mach & Eng’g Co. of Utah, 81 F.3d 922, 930 (10th Cir. 1996). “The federal government may condition its waiver of sovereign immunity by Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 5 of 11 6 requiring plaintiff to follow specific procedures in order to recover.” Lindstrom v. United States, 510 F.3d 1191, 1194 (10th Cir. 2007) (citation omitted). Plaintiff bears the burden of proving a waiver of sovereign immunity. Impact Energy Resources, LLC v. Salazar, 693 F.3d 1239, 1244-45 (10th Cir. 2012) (quoting Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008)). Plaintiff does not attempt to and cannot meet that burden here. Plaintiff’s pro se status does not absolve him of the obligation to meet all legal requirements, including his burden to prove jurisdiction by a preponderance of the evidence. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Helsper v. Napolitano, No. 11-cv-01084-MSK-BNB, 2012 WL 715555, *1 (D. Colo. Mar. 5, 2012) (observing that pro se plaintiff must comply with the “various rules and procedures governing litigants and counsel or the requirements of the substantive law”). Plaintiff’s vague allegations do not allow him to carry his burden to show that there has been a waiver of sovereign immunity that allows this case to proceed in this Court. He has not articulated a cognizable claim in tort,3 contract,4 or any other legitimate cause of action to which a waiver of sovereign immunity may 3 To the extent Plaintiff’s case involves tortious conduct, he has not shown that the Federal Tort Claims Act (“FTCA”) waiver of sovereign immunity applies. Moreover, even if Plaintiff could show that the waiver of sovereign immunity under the FTCA applies to this action, the waiver is limited by a number of exceptions and conditions, including an administrative exhaustion requirement. See 28 U.S.C. §§ 2679-80; Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218 (2009). Here, Plaintiff does not allege that he exhausted his administrative remedies. Nor could he, for he has not filed an administrative claim with the AOUSC. See Declaration, Ex. 1. 4 Construing Plaintiff’s Motion in the most liberal manner, it seems to seek specific performance by the Defendants based on some kind of contractual relationship with Plaintiff. If Plaintiff does seek relief based in contract, he must show a waiver of sovereign immunity for such an action. Through the “Tucker Acts,” the United States has waived its sovereign immunity with respect to certain lawsuits founded in contract disputes. 28 U.S.C. § 1491; 28 U.S.C. § 1346(a)(2). However, “neither the Tucker Act nor the Little Tucker Act authorize relief other than money damages for such contract claims.” Robbins v. U.S. Bureau of Land Management, 438 F.3d Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 6 of 11 7 apply. 5 Because he has failed to meet that burden, the Court should dismiss this case for lack of subject matter jurisdiction. II. Plaintiff does not state a plausible claim. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss” under Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “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.” Id. at 678; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (allegations that demonstrate plausibility “raise a right to relief above the speculative level”). In assessing whether a claim is plausibly pleaded, the Court can consider only non-conclusory factual allegations. “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citations, quotation marks and brackets omitted). If the allegations “are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)). 1074, 1081 (10th Cir. 2006) (citing United States v. Jones, 131 U.S. 1, 19 (1889)). There is no other waiver of the government’s sovereign immunity from a lawsuit that seeks specific performance of a contract. See National Helium Corp. v. Morton, 486 F.2d 995, 1000 (10th Cir. 1973). 5 Plaintiff has likewise not shown or attempted to show state court jurisdiction for his original action in El Paso County, and “a federal court's jurisdiction upon removal under 28 U.S.C. § 1442(a)(1) is derivative of the state court jurisdiction, and where the state court lacks jurisdiction over the subject matter or the parties, the federal court acquires none upon removal.” Smtih v. Cromer, 159 F.3d 875, 879 (4th Cir. 1998). Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 7 of 11 8 After Iqbal, a complaint must include “either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1285 (10th Cir. 2008); see also Khalik, 671 F.3d at 1192 (“While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim.”). Plaintiff has pleaded no facts plausibly showing any cause of action at all. Instead, he has filed several incomprehensible documents6 that seem to espouse “redemption,” a conspiracy theory promoted by the “sovereign citizen” movement. See Bryant v. Washington Mut. Bank, 524 F.Supp.2d 753, 758-760 (W.D.Va. December 19, 2007) (explaining the theory of redemption and calling it “equal parts revisionist legal history and conspiracy theory”); see also Gravatt v. United States, 100 Fed. Cl. 279, 283 (2011) (Plaintiff seeking “redemption” of funds in alleged trust held by government); Rivera v. United States, 105 Fed. Cl. 644 (2012) (same). Persons who ascribe to this theory will allege that their birth certificate, a document attached to Plaintiff’s Motion, is evidence of a trust for which they claim to be both the grantor and the beneficiary. Rivera, 150 Fed. Cl. at 646. The Trust account allegedly holds funds “paid into the court and later deposited in the United States Treasury.” Id.7 As noted by the Court of Federal 6 It should be noted that this is not the first bizarre case filed by Plaintiff. Indeed, he has filed several cases ostensibly against himself or his trust in the district court for the District of Colorado in the last two years. All cases were dismissed. See Lewis v. Lewis et. al., Docket No. 1:16-cv-00620-LTB; Lewis v. Lewis, Docket No. 1:16-mc-00027-MEH; Lewis v. Lewis et. al., Docket No. 1:16-cv-00620-LTB. 7 Plaintiff has not articulated this theory quite as coherently as the Rivera and Gravatt plaintiffs, but taken as a whole his filings appear to reflect the same ideas, which Plaintiff himself labels as “redemption” in Doc. 7. Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 8 of 11 9 Claims when faced with these requests for “redemption,” “[i]t strains all logic and reason to believe that the trust fund alleged by plaintiff actually exists. Indeed, as Judge Moon aptly described, the belief in the existence of such trust funds is “‘equal parts revisionist legal history and conspiracy theory.’” Gravatt, 100 Fed. Cl. 279, 288 (2011) (quoting Bryant, 524 F.Supp.2d at 758)). As in Gravatt, Rivera, and Bryant, “all of plaintiff’s allegations are nonsensical.” Id. at 286. Plaintiff has not come close to alleging a conceivable claim, much less a plausible one. Twombly, 550 U.S. at 554) (“a plaintiff must nudge his claims across the line from conceivable to plausible to survive a motion to dismiss.”). Even allowing for liberal construction of Plaintiff's filings, it is impossible to decipher the nature of the claims Plaintiff attempts to allege, or any specific facts that would support a cause of action. Director Duff (and AOUSC), therefore, has no fair notice of Plaintiff’s claims, and the Plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8. II. JAMES C. DUFF IN HIS OFFICIAL CAPACITY AND THE AOUSC ARE THE SAME DEFENDANT Plaintiff appears to have named both James C. Duff and the AOUSC as defendants. However, as James C. Duff is the director of the AOUSC, he is the proper defendant for an official capacity claim against the agency. A suit against government officials in their official capacity is really “a suit against the officials’ office. . . .” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 59 (1989). Therefore, the Court should dismiss AOUSC as a defendant. CONCLUSION Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 9 of 11 10 The Plaintiff’s action lacks subject matter jurisdiction and has failed to state a claim upon which relief can be granted. The Court should dismiss the case against Defendant Duff and the AOUSC. Alternatively, the Court should order Plaintiff to file a more definitive statement of his supposed claims under Fed. R. Civ. P. 12(e). Respectfully submitted this 9th day of June, 2017. By: ROBERT C. TROYER Acting United States Attorney s/ Elizabeth M. Froehlke Elizabeth M. Froehlke 1801 California Street, Suite 1600 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0408 E-mail: elizabeth.froehlke@usdoj.gov Attorneys for Defendants Duff and the Administrative Office of United States Courts Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that on this 9th day of June, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: I also hereby certify that on this 9th day of June, I have mailed the foregoing document to the following non-CM/ECF participant in the manner indicated by the non-participant’s name: By U.S. mail: Kenneth-William Lewis 6071 Del Rey Drive Colorado Springs, CO 80918 Leeann Morrill, First Assistant Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 6th Floor Denver, CO 80203 Counsel for Gerald Marroney and Walker Stapleton /s/ Elizabeth M. Froehlke Elizabeth M. Froehlke Case 1:17-cv-01139-STV Document 8 Filed 06/09/17 USDC Colorado Page 11 of 11 Case 1:17-cv-01139-STV Document 8-1 Filed 06/09/17 USDC Colorado Page 1 of 2 Case 1:17-cv-01139-STV Document 8-1 Filed 06/09/17 USDC Colorado Page 2 of 2