Demos v. Virginia Company, The et al

Filing 8

REPORT AND RECOMMENDATIONS re 1 Complaint filed by John Robert Demos, Jr. Objections to R&R due by 12/17/2009. Signed by Honorable Barry A. Bryant on November 30, 2009. (cap)

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IN THE UNITED STATES DISTRICT COURT WE S T ER N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION JO H N ROBERT DEMOS, JR. v s. THE VIRGINIA COMPANY, et al C iv il No. 4:09-cv-4101 PLAINTIFF D E FE N D A N T S REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE P lain tiff, John Robert Demos, Jr., is currently an inmate of the McNeil Island Corrections C en ter in Steilacoom, Washington, and filed this pro se civil rights action pursuant to 42 U.S.C. 1983. Plaintiff seeks to proceed in forma pauperis. The complaint was provisionally filed prior to a d eterm in atio n regarding service of process. Pursuant to the provisions of 28 U.S.C. 636(b)(1) and (3)(2005), the Honorable Harry F. Barnes, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. 1. Background Plaintiff's complaint was provisionally filed on September 15, 2009. (Doc. No.1). On October 2, 2009, the Court ordered that Plaintiff complete an Addendum to Complaint to assist the Court in the determination of whether the complaint should be served upon the Defendants. (Doc. No. 6). This Order sought, among other things, information from Plaintiff showing the basis of federal court jurisdiction, facts for establishing venue with this Court, and facts regarding where and how each Defendant was to be served. See Id. Plaintiff responded to this order and filed his Addendum to Complaint on November 23, 2009. (Doc. No. 7). -1- 2. Discussion B ased on a review of Plaintiff's complaint (Doc. No. 1) and Plaintiff's Addendum to Complaint (D o c. No. 2), the Court recommends that Plaintiff's complaint be dismissed for a failure to state a claim u p o n which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Plaintiff has failed to allege any claim o f a federal nature or any claim based on diversity of citizenship upon which he could be granted relief. P lain tiff has also failed to establish that venue of this matter is proper in the United States D istrict Court for the Western District of Arkansas, Texarkana Division. Plaintiff was directed to set fo rth facts in the Addendum to Complaint which establish that the Western District of Arkansas is the p ro p er venue to pursue his claims. (Doc. No. 6). Plaintiff's response was as follows: T h e Virginia Company has tentacles like an octopus that spread all over the United S tates that's because the Virginia Company and the United Sates are one and the same. The U.S. District Court of Texarkana, Arkansas is a United States Court. P lain tiff has failed to establish that venue is proper with this Court, and as such, this matter should be d ism issed based on Fed. R. Civ. P. 12(b)(3). Finally, Plaintiff has failed to describe a proper Defendant or means by which any Defendant m ay be served. Plaintiff was directed to set forth facts in the Addendum to Complaint regarding service o f his complaint on the Defendants. (Doc. No. 6). Plaintiff's response was as follows: A ll Defendants have the same mailing address, 1600 Pennsylvania Avenue, Wash. D.C. o r, the Office of the U.S. Secretary of State, or the Office of the U.S. Treasury Secretary. I repeat, the Virginia Company and the United Sates of America are one and the same. Plaintiff has failed to provide information by which his suit may be properly served. Further, the U.S. S ecretary of State, the Office of the U.S. Treasury Secretary, and the United Sates of America are not D efen d an ts in this matter. D esp ite being offered the opportunity to do so, Plaintiff has wholly failed to state a claim upon w h ich relief can be granted, he has failed to show why the Western District of Arkansas is the proper -2 - place to file this action, and he has failed to specifically identify where and how the Defendant may be serv ed with process. The Court finds the claims raised in this matter are frivolous and should be d ism issed with prejudice. 3 . Conclusion I therefore recommend that this case be dismissed as the Plaintiff fails to state a claim on which relief may be granted. I further recommend the Plaintiff's action be dismissed as frivolous. See 28 U.S.C. 1915(e)(2)(B)(i)-(iii)(an in forma pauperis action, or any portion thereof, may be dismissed on such grounds at any time). Plaintiff has ten days from receipt of the report and recommendation in which to file written objections pursuant to 28 U.S.C. 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. Plaintiff is reminded that objections must be both timely and specific to trigger de novo review by the district court. D A T E D this 30th day of November, 2009. /s/ Barry A. Bryant HON. BARRY A. BRYANT U. S. MAGISTRATE JUDGE -3 -

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