Bey v. Cooch et al
MEMORANDUM AND ORDER DISMISSING 2 Complaint (Pro Se) filed by Sharif Mozaar Mustafa El Bey, DISMISSING AS MOOT 16 MOTION to Strike 15 Sur-Reply Brief, filed by Lee Cloud, D. Tursi, Richard R. Cooch, GRANTING 11 MOTION to Dismiss for Lack of Jurisdiction Over the Subject Matter MOTION to Dismiss for Insufficiency of Process MOTION to Dismiss for Insufficiency of Service of Process MOTION to Dismiss for Failure to State a Claim filed by Lee Cloud, D. Tursi, Richard R. Cooch, DENYING 23 MOTION to Amend/Correct filed by Sharif Mozaar Mustafa El Bey. Signed by Chief Judge Gregory M. Sleet on 11/28/2011. (asw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
ALTON CANNON, a/k/a
SHARIF M. M. E. BEY,
RICHARD R. COOCH, et ai.,
On April 6, 2010, the plaintiff, Alton Cannon, ("Cannon") filed this lawsuit against the
Honorable Richard R. Cooch, and Lieutenant Lee Clough' and Corporal Dan Tursi 2 of the
Capitol Police Department (the "defendants"). (D.!. 2 at 1.) In his complaint, Cannon seeks an
order from this court directing the defendants to give him a copy of the "court order" which bars
him from using the law library in the New Castle County Courthouse. (Id. at 7.) Cannon seeks
relief under the federal and state Freedom oflnforrnation Acts pursuant to 5 U.S.C. §§ 551(1),
552 and DEL. CODE ANN. tit. 29, § 10001 (2010), respectively. Presently before this court is the
defendants' motion to dismiss for failure to state a claim for which relief can be granted pursuant
to Rule I2(b)(6) of the Federal Rules of Civil Procedure (D.L 11); and the plaintiffs motion for
leave to amend his complaint (D.!. 23). For the reasons stated below, the court will grant the
defendants' motion to dismiss the complaint and deny the plaintiffs motion for leave to amend
In his Complaint, Cannon incorrectly identifies Lieutenant Clough as "Lee Cloud."
Similarly, Cannon identifies Corporal Dan Tursi as "Cpl. D. Tursi" in his Complaint.
The court takes the following facts from what can be discerned from Cannon's
complaint. 3 Cannon alleges that, on or around January 27, 2010, he entered the law library
located within the New Castle County Courthouse in order to conduct legal research. (D.1. 2 at
4.) At about 3:45 PM, Corporal Dan Tursi and an unknown member of the Capitol Police
Department arrived at the library and told Cannon that he must immediately leave the area. (Id.)
When Cannon asked the officers for an explanation as to why he was being "ordered" to exit the
library, the officers refused to provide Cannon with a verbal or written copy ofthe "court order"
purportedly handed down by Judge Richard R. Cooch. (Id.) Cannon claims that he has exhausted
his remedies in attempting to obtain a copy of the court order barring him from access to the law
library and has, thus, filed this action. (Id.)
In his complaint, Cannon avers that the defendants "arbitrarily, maliciously, capriciously,
and recklessly disregarded [Cannon's] birthright to use [and] have access to the public law
library." (Id. at 5.) He further claims that his being asked to leave the area of the library violates
almost all of his constitutional rights. (See id.) Beyond the alleged violations of his
constitutionally protected rights, Cannon claims that the defendants' actions are in breach of the
Federal and Delaware state Freedom ofInformation Acts. (0.1. 13 at ~15.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a
complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In
deciding a Rule 12(b)(6) motion, courts '''accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler v. UPMe
Cannon's complaint is illegibly handwritten and laden with seemingly random citations and disjointed arguments.
Shadyside, 578 F.3d 203,210 (3d Cir. 2009) (quoting Phillips v. County ofAllegheny, 515 F.3d
224,233 (3d Cir. 2008)). A complaint does not need detailed factual allegations, but it must
include "a short and plain statement of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiffs claim is
and the ground upon which it rests.'" Conley v. Gibson, 355 U.S. 41, 47 (1957). To survive a
motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state
a claim to reliefthat is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The assumption of
truth does not apply, however, to legal conclusions, which is to say that "[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice."
Iqbal, 129 S. Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more
than a mere possibility of misconduct, the complaint has alleged - but it has not shown - that a
pleader is entitled to relief." Id. at 1950 (internal quotations omitted).
When a plaintiff proceeds pro se, his pleading is "liberally construed" and his complaint,
"however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (citations omitted). However,
"[t]his [C]ourt must dismiss, at the earliest practicable time, certain in forma pauperis actions
that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who
is immune from such relief." El Bey v. Delaware, No. 09-CV-880, 2010 WL 320196, at *1 (D.
Del. 2010) (dismissing an action previously filed by this plaintiff in this court). Before
dismissing a frivolous complaint for failure to state a claim, the court must grant the plaintiff
"leave to amend his complaint unless amendment would be inequitable or futile." Id. at *2.
Federal Rule of Civil Procedure 15 permits a party to amend a pleading with consent of
the other parties or leave of court at anytime during the proceedings. The rule further provides
that "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2).
Leave to amend should be denied, however, where the amendment is futile. See Monahan v.
City o/Wilmington, No. Civ. A. 00-505,2004 WL 758342, *1 (D. Del. Jan. 30,2004). Futility
of amendment occurs when the complaint, as amended, does not state a claim upon which relief
can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.
A. Sovereign Immunity
The defendants have moved to dismiss the plaintiff s claims on the basis that they are
immune from federal claims pursuant to the Eleventh Amendment. The Eleventh Amendment
protects states and their agencies and departments from suit in federal court regardless of the
reliefsought. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,100 (1984). In short, the
"court and the State have sovereign immunity." Brooks-McCollum v. Delaware, 213 Fed. Appx.
92,94 (3d Cir. 2007) (not reported). This immunity likewise extends to protecting state officials
acting in their official capacities. McKay v. Delaware State Univ., No. CIV. A. 99-219-SLR,
2000 WL 1481018, at *10-11 (D. Del. Sept. 29, 2000) (stating that "the Eleventh Amendment
bars Section 1983 claims against state entities and state officials sued in their official
capacities"); see also Will v. Michigan Dep '( o/State Police, 491 U.S. 58, 71 (1989) (noting that
"a suit against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official's office" and, therefore, "is no different from a suit against the
State itself'). A waiver of this immunity will only be found where it is stated "by the most
express language or by such overwhelming implications ... as [will] leave no room for any other
reasonable construction." Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909).
Here, the defendants assert that Judge Cooch, Lieutenant Clough, and Corporal Tursi are
protected from suit by the doctrine of sovereign immunity. The court agrees. From what can be
discerned from Cannon's allegations, each of the defendants was acting in his official capacity
when Cannon was asked to leave the law library; Judge Cooch allegedly passed down an order to
Clough and Tursi, acting as court security officers, to remove Cannon from the area. Cannon
cites a seemingly random series oflargely inapposite cases in support of his argument that the
defendants lack or waived immunity. Put simply, the holdings of these cases have no relation to
the instant matter. (See D.l. 13 at 6-7.) Given that Cannon's claim is void of any factual
allegations that the defendants expressly or impliedly waived their sovereign immunity, they are
protected from this suit.
B. Judicial Immunity
"A judicial officer in the performance of his duties has absolute immunity from suit and
will not be liable for his judicial acts." Azubuko v. Royal, 443 F.3d 302,303 (3d Cir. 2006).
Further, judges are not liable for their judicial acts "even when such acts are in excess of their
jurisdiction, and are alleged to have been done maliciously or corruptly." Stump v. Sparkman,
435 U.S. 349, 356 (1978) (quoting Bradley v. Fisher, 80 U.S. 335, 336 (1871)). He or she will
only be subject to liability when he has acted "in clear absence of all jurisdiction." Stump, 435
U.S. at 356-57.
The defendants correctly assert that Judge Cooch is immune from suit under the rule
articulated in Azubuko. There are absolutely no facts in his Complaint to support Cannon's
allegation that Judge Cooch acted in "clear absence of all jurisdiction." ( D.l. 13 at ~13.) Even
given the benefit of the liberal pleading standard afforded to pro se litigants, the facts alleged by
Cannon simply do not, except in the most conclusory manner, state a plausible claim against this
judicial officer. See Forrester v. White, 484 U.S. 219, 227-229 (1988) (explaining that judges are
not immune from non-judicial acts, i.e., actions taken out of the judge's judicial capacity). The
complaint simply makes the bare, conclusory statement that Judge Cooch "was not acting as a
Judge against Alton Cannon by barring [him] from the law library." (D.1. 13 at ,-r13.) These
unsupported allegations are insufficient to lower the defense ofjudicial immunity
C. Federal Freedom of Information Act
Cannon asserts that federal jurisdiction exists in this case pursuant to the Federal
Freedom ofInfonnation Act ("Federal FOIA'"), 5 U.S.C. §§ 551(1), 552. As defined by section
551(1), the Federal FOIA is only applicable to those agencies of the executive branch of the
federal government. "Under the thrust and structure of the FOIA, virtually every record of a
federal executive branch agency must be made available to the public in one fonn or another ...."
U.S. Dept. of Justice, Freedom of Info. Act Guide, 2005 WL 6339596, at * 1 (2005) (emphasis
Clearly, the Superior Court of Delaware is not a federal executive branch agency. Thus,
any order given by Judge Cooch to the police officers regarding Cannon's removal from the law
library does not come within the purview of the Federal FOIA. As such, the court is without the
power to grant the relief that Cannon seeks.
D. State Freedom of Information Act
Cannon also seeks relief under Delaware's Freedom ofInfonnation Act ("Delaware
FOIA"). In its Declaration of Policy, the Delaware FOIA states that "it is vital that citizens have
easy access to public records in order that the society remain free and democratic." DEL. CODE
ANN. tit 29, § 10001 (2011). A public records is any information produced by a public body. Id.
§ 10002(g). In the Delaware FOIA, "public body" is defined as, "any regulatory, administrative,
advisory, executive, appointive or legislative body of the State, or of any political subdivision of
the State." Id. § 10002(c). Neither courts nor any portion of the judiciary are enumerated as a
public body in the Delaware FOIA. See id. Further, any citizen denied access to public records
may seek redress under this Act in a "court of competent jurisdiction for the county or city in
which the public body ordinarily meets or in which the plaintiff resides." Id. § 10005(b)
The "court order" Judge Cooch handed down to the police officers which required the
removal of Cannon from the law library may, or may not, be the type of record to which Cannon
is entitled "easy access." Even if it is, the proper venue for Cannon's case is the Superior Court
for New Castle County, not the U.S. District of Delaware. Further, it is worth noting that Cannon
expressly admitted that Judge Cooch never wrote down the purported order he seeks to obtain.
(D.I. 13 at ~12.) Cannon states, "Richard R. Cooch failed to file any paperwork at the Superior
Court such as a court order indicating ... any reasons why Alton Cannon is not allowed to enter
and use the ... law library." (Id.) In sum, even if the Delaware FOIA applies to the facts of this
case, this court is not the proper forum for the resolution of Cannon's claims.
Leave to Amend
Here, amendment of Cannon's complaint would be futile. See Alston v. Parker, 363 F.3d
229 (3d Cir. 2004); Grayson v. Mayview State Hosp., 293 F.3d 103, III (3d Cir. 2002); Borelli v.
City ofReading, 532 F.2d 950, 951-52 (3d Cir. 1976). If the proposed amendment "is frivolous
or advances a claim or defense that is legally insufficient on its face, the court may deny leave to
amend." Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.RD. 463, 468 (D.N.J. 1990).
In the present case, the plaintiffs proposed amendments are frivolous and legally insufficient on
their face, as they fail to, nor could they, state a claim for which this court can grant relief.
Given the nature of the relief that Cannon seeks, even the most aptly pled complaint could not
meet the requirements articulated by Twombly and Iqbal.
For the aforementioned reasons, the court will deny the plaintiffs motion for leave to
amend the complaint (0.1.23), and the court will grant the defendants' motion to dismiss the
complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (OJ.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
ALTON CANNON, a/k/a
SHARIF M. M. E. BEY,
RICHARD R. COOCH, et aI.,
For the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that:
1. The defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure (D.I. 11) is GRANTED;
2. the plaintiffs Motion to Amend/Correct the Complaint (0.1.23) is DENIED;
3. the defendants' Motion to Strike (D.1. 16) is DISMISSED as moot; and
4. the plaintiffs Petition (D.1. 2) is DISMISSED with prejudice.