Bussie v. Boehner et al
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/4/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00161-BNB
JOHN BOEHNER, House Speaker, and
ROBERT ANDREWS, Congressman,
ORDER OF DISMISSAL
Plaintiff, Anthony Bussie, is detained at the Federal Detention Center in
Philadelphia, Pennsylvania. He initiated this action by filing pro se a Prisoner Complaint
on January 21, 2014. The Complaint is largely unintelligible. However, Plaintiff appears
to allege that the Defendants, two United States Congressmen, who do not reside in
Colorado, have violated his statutory and/or constitutional rights. He seeks injunctive
relief and $1.2 trillion dollars in damages.
On January 23, 2014, the Court entered an order directing Mr. Bussie to show
cause within thirty (30) days of the order why this action should not be dismissed for
improper venue. (ECF No. 4). Plaintiff failed to respond by the Court-ordered deadline.
The Court must construe the Complaint liberally because Mr. Bussie is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). If the Complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff's failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court should not act as an
advocate for pro se litigants. See id.
Section § 1391(b) of Title 28 United States Code sets forth the rules that govern
venue in federal courts. In general, a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is
(2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is
(3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in
which any defendant is subject to the court’s personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
“A court may sua sponte cure jurisdictional and venue defects by transferring a
suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the
interest of justice.” Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir. 2006). Pursuant
to § 1406(a), “[t]he district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been brought.”
The Defendants do not reside in Colorado and the Complaint is devoid of any
allegations suggesting that the acts complained of occurred in the District of Colorado.
As such, venue is not proper in the District of Colorado. The Court declines to transfer
this action to an appropriate venue, however, because Mr. Bussie fails to assert an
arguable claim for relief. Mr. Bussie brings claims for monetary relief against two
Congressman. “It is well established that federal, state, and regional legislators are
entitled to absolute immunity from civil liability for their legislative activities.” Bogan v.
Scott-Harris, 523 U.S. 44, 46 (1998); see also Eastland v. U.S. Servicemen’s Fund, 421
U.S. 491 (1975); Gravel v. United States, 408 U.S. 606 (1972).
“There is no obligation to keep meritless claims alive through transfer to another
court.” See Johnson v. Lappin, No. 11-1381, 478 F. App’x 487, 492 (10th Cir. April 16,
2012) (unpublished) (dismissing habeas claims raised in Bivens1 action as frivolous,
instead of transferring claims to appropriate federal venue); see also Haugh v. Booker,
210 F.3d 1147, 1150-51 (10th Cir. 2000) (authorizing federal court to “take a peek at the
merits” to “avoid wasting judicial resources that would result from transferring a case
which is clearly doomed.”) (internal citation and quotations omitted). Accordingly, this
action will be dismissed for improper venue.
Furthermore, it has come to the Court’s attention that Mr. Bussie, on three or
more prior occasions, while incarcerated, has brought an action in federal court that was
dismissed on the grounds that it was frivolous, malicious, or that it failed to state a
claim. See Bussie v. Andrews, et al., No. 13-cv-02244-LTB (D. Colo. Nov. 12, 2013)
(dismissing action under § 1915(e)(2)(B); no appeal filed); Bussie v. Andrews, 5:13-CV322-BO (E.D.N.C. Sept. 3, 2013) (dismissing action under § 1915(e)(2)(B); no appeal
filed); Bussie v. Dep’t of Defense, et al., No. 13-cv-4574 (JG), 2013 WL 5348311
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
(E.D.N.Y. Sept. 23, 2013) (dismissing action under § 1915(e)(2)(B) and recognizing
Plaintiff’s abusive filing history; no appeal filed); Bussie v. Attorney General, et al., No.
13-cv-476-wmc and 13-cv-477-wmc, 2013 WL 3934179 (W.D. Wis. July 30, 2013)
(dismissing actions under § 1915A and noting Plaintiff’s abusive filing history; no appeal
filed); Bussie v. Allissa Marquez, et al., No. 3:13-cv-01056 (AWT) (D. Conn. Aug. 6,
2013) (dismissing action under 28 U.S.C. § 1915A(b)(1); no appeal filed); Bussie v. Fed.
Dep. Ins. Corp., et al., 13-cv-23000-UU (S.D. Fla. Oct. 30, 2013) (dismissing action
under § 1915(e)(2)(B); no appeal filed); Bussie v. Dep’t of Commerce, No. 5:12-cv00792-D (E.D.N.C. March 12, 2013) (dismissing action under § 1915A; appeal
dismissed for failure to prosecute in No. 13-1640 (4th Cir. Aug. 13, 2013)).
Each of the dismissals set forth above qualifies as a strike under § 1915(g). See
Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172; 1176 (10th Cir. 2011). At least one
federal district court has recognized that Mr. Bussie is subject to § 1915(g) filing
restrictions. See Bussie v. Robert C. Andrews, et al., No. 4:14-cv-00062-RWS (E.D.Mo.
Jan. 17, 2014) (dismissing action for failure to pay filing fee because Mr. Bussie failed to
comply with § 1915(g) filing restrictions). Mr. Bussie therefore may not proceed in the
future in this Court pursuant to 28 U.S.C. § 1915 unless he demonstrates that he is in
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g). Accordingly, it is
ORDERED that this action is DISMISSED WITHOUT PREJUDICE for improper
venue. It is
FURTHER ORDERED that Mr. Bussie may not proceed in the future in this Court
pursuant to 28 U.S.C. § 1915 unless he demonstrates that he is in imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g). It is
FURTHER ORDERED that all pending motions are DENIED as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Dated March 4, 2014 at Denver, Colorado.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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