Bey v. Wilmington Police Department et al

Filing 8

MEMORANDUM. Signed by Judge Gregory M. Sleet on 3/12/2012. (lih)

IN THE llNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

SHARIF MOZAAR MUSTAFA EL:BEY, )

formerly known as Alton Cannon,
)

)

Plaintiff,
)

)

) Civ. No. 11-1200-GMS
v.
)

WILMINGTON POLICE DEPARTMENT )

)

et al.,
)

)

Defendants.

MEMORANDUM
I. INTRODUCTION
The plaintiff, SharifMozaar Mustafa EI:Bey ("EI:Bey"), formerly known as Alton
Cannon, filed a complaint with a request for mandatory injunction on December 5, 2011. (D.!.
2.) EI:Bey resides in Wilmington, Delaware and is a frequent filer in this court. He appears pro

se and has been granted leave to proceed in forma pauperis. For the reasons discussed below, the
court will dismiss the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).

II. FACTUAL AND PROCEDURAL BACKGROUND
In the instant complaint, EI:Bey cites to numerous federal criminal statutes, the
Administrative Procedure Act, repealed statutes, and a civil rights statute. The civil cover sheet
describes the instant action as "fraud pertaining to real/personal property" pursuant to 18 U.S.C.

§ 1651. The complaint is silent as to jurisdiction, but the civil cover sheet states that jurisdiction
rests pursuant to 28 U.S.C. § 1332 by reason of diversity of citizenship. EI:Bey names as
defendants the Wilmington Police Department ("Wilmington Police"); Robert Martin ("Martin")
of Newark, Delaware, who apparently is the managing member of Vestinus LLC ("Vestinus")

and/or September, LLC ("September"); Tina D'Antonio ("D'Antonio"), a realtor from
Chaddsford, Pennsylvania; and the Court of Chancery of the State of Delaware ("Court of
Chancery"). For relief EI:Bey seeks a "mandatory injunction."
El:Bey filed a complaint in the Court of Chancery of the State of Delaware to
preliminarily and permanently enjoin the Police Department, Martin, and D'Antonio from
encroaching and trespassing on land to which EI:Bey claimed title. 1 (D.I. 2, Ex. Nov. 23,2011
Court of Chancery Opinion ("the opinion").) The allegations in the Court of Chancery case and
the instant complaint are extremely similar, the main difference being that the instant complaint
was filed approximately two weeks following the November 23,2011 opinion in the Court of
Chancery case, names the Court of Chancery as a defendant, and continues with events following
issuance of the opinion.
On November 1,2011 EI:Bey "found" abandoned property located at 2105 Baynard
Boulevard, Wilmington, Delaware ("the property"), that had been vacated by Larry and Karen
Hicks ("the Hicks"). EI:Bey took up residence on the property on November 5, 2011. El:Bey
claims that the abandoned property belongs to him and that he has a right to the property
pursuant to a "Mortgagee Worthier Deed" dated October 31, 2011, and filed November 2, 2011.
The Recorder of Deeds did not designate the document as a deed at the time of filing.
On November 7, 2011, D'Antonio was showing the property to a potential buyer. When
they discovered EI:Bey, they called the police and, as alleged by EI:Bey, began "stalking,
threatening, harassing him, and trespassing on the property. On November 8, 2011, Wilmington

IMatthew Severance was also a named defendant in the Court of Chancery case. He is
not a named defendant in the instant complaint.
2

Police responded to a call from Martin and D'Antonio. The police, without a court order, gave
Martin and D'Antonio permission to change the locks on the property and enter the property.
EI:Bey vacated the property? EI:Bey returned to the property on November 15,2011, to claim it
by entering the property. The Wilmington Police arrived and threatened EI:Bey and his visitors
warning them to leave the property. EI:Bey "reported" to the police station and was further
warned against returning to the property.
The Court of Chancery issued its opinion on November 23,201, finding that EI:Bey had
no legal claim to the property. The Court of Chancery found that the Hicks transferred the
property to Vestinus on November 16,2010, and that Vestinus transferred the property to
September on the same date through a Quitclaim Deed. EI:Bey alleged that the Quitclaim Deed
is fraudulent. The Court of Chancery found EI:Bey's complaint both factually and legally
frivolous and that the "Mortgagee Worthier Deed" did not grant title to the property to him.
;Nonetheless, once again EI:Bey was at the property on December 2, 2011, and he "noticed" that
his personal belongings had been removed from the property and there were "intruders" from
SeptemberNestinus and ReMax Independence. Again, the police were again called and EI:Bey
was warned to leave the property and not return or face arrest. El:Bey "offered" for Martin and
D'Antonio to file a petition for eviction but they refused.
EI:Bey alleges that the Wilmington Police did not have jurisdiction to evict him from the
property without a court order and that the State of Delaware, Vestinus/September, and the State
of Delaware Recorder of Deeds conspired to erase/remove the Hicks' deed off the registry books.

2The Court of Chancery case indicates thatEI:Bey noticed a broken window at the
property and vacated it out of fear for his safety and well-being.

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He seeks a "federal protection order" against the Wilmington Police, Martin, and D'Antonio to
protect him from people/police, to prevent the Wilmington Police from interfering in a private
matter, and to preclude them from continued trespass with the assistance of Martin and
D'Antonio.

III. STANDARD OF REVIEW
This court 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. See 28 U.S.C. § 1915(e)(2). The court must accept all factual
allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff.
Phillips v. County ofAllegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.
89, 93 (2007). Because EI:Bey 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. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly
baseless" or "fantastic or delusional" factual scenario. Neitzke v. Williams, 490 at 327-28;
Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67 F.3d
1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took an
inmate's pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to §
1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on 12(b)(6) motions.
4

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6)

standard to dismissal for failure to state a claim under § 1915(e)(2)(B». However, before
dismissing a complaint or claims for failure to state a claim upon which relief may be granted
pursuant to the screening provisions of28 U.S.C. § 1915, the court must grant EI:Bey leave to
amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

A well-pleaded complaint must contain more than mere labels and conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007). When determining whether dismissal is appropriate, the court conducts a two-part
analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and
legal elements of a claim are separated. Id. The court must accept all of the complaint's well­
pleaded facts as true, but may disregard any legal conclusions. Id. at 210-11. Second, the court
must determine whether the facts alleged in the complaint are sufficient to show that EI:Bey has
a "plausible claim for relief." Id. at 211. In other words, the complaint must do more than allege
EI:Bey's entitlement to relief; rather it must "show" such an entitlement with its facts. Id.
"To survive dismissal, a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 570). A claim is facially plausible when its factual content allows the

court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id.
The plausibility standard "asks for more than a sheer possibility that a defendant has acted
unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's
liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'"

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Id The assumption of truth is inapplicable to legal conclusions or to H[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Id H[W]here the wellpleaded 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 the pleader is entitled to relief." Id (quoting

•

Fed. R. Civ. P. 8(a)(2)).

IV. DISCUSSION
A. Issue and Claim Preclusion
The court first addresses the issues of res judicata and collateral estoppel. Under the
doctrine of res judicata (referred to now as claim preclusion), ajudgment in a prior suit involving
the same parties, or parties in privity with them, bars a subsequent suit on the same cause of
action. See Fairbank's Capital Corp. v. Milligan, 234 F. App'x 21, 23 (3d Cir. 2007) (not
published); Transamerica Occidental Life Ins. Co. v. Aviation Office ofAm., Inc., 292 F.3d 384,
392 (3d Cir. 2002). "The rationale is that if the adjudication of an action is binding on parties in
privity with the parties formally named in the litigation, then any claims against parties in privity
should be brought in the same action lest the door be kept open for subsequent relitigation of the
same claims." Transamerica OCCidental, 292 F.3d at 392.
Collateral estoppel, also known as issue preclusion, refers to the preclusive effect of a
judgment on the merits of an issue that was previously litigated or that could have been litigated.
See Fairbank's Capital Corp., 234 F. App'x at 23. Issue preclusion occurs "[w]hen an issue of
fact or law is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is conclusive in a subsequent action
between the parties, whether on the same or a different claim. m Jean Alexander Cosmetics, Inc.

6

v. L 'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006) (quoting Restatement (Second) of
Judgments § 27 (1982)). There are four requirements for the application of collateral estoppel:
(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the
previous detennination was necessary to the decision; and (4) the party being precluded from
relitigating the issue was fully represented in the prior action." Id. (internal quotation marks and
citations omitted).
EI:Bey raised the same or similar claims in the Court of Chancery, and he merely
continued with his claims in this court when the Court of Chancery ruled against him and he filed
the instant suit against three of the four defendants in the Court of Chancery case and added the
Court of Chancery as a defendant. EI:Bey is barred under the doctrine of issue preclusion to
relitigate his claims relating to his entitlement to the property. See Burlington N R.R. Co. v.
Hyundai Merch. Marine Co., 63 F.3d 1227,1231-32 (3d Cir. 1995). To the extent EI:Bey seeks

to raise additional claims that could have been raised in his prior action, said claims are also
barred. SeeCoreStatesBank, NA. v. HulsAm., Inc., 176F.3d 187, 194 (3dCir. 1994).
EI:Bey's time to raise his claims occurred when he unsuccessfully sought recovery in the Court
of Chancery. EI:Bey may not relitigate the claims he currently raises against the defendants as
they are barred under the doctrines of claim and issue preclusion.
B. Rooker-Feldman Doctrine and Younger Abstention Doctrine

1. Rooker-Feldman Doctrine
Federal district courts are courts of original jurisdiction and have no authority to review

7

final judgments of a state court in judicial proceedings.3 Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); see Power v. Department ofLabor, 2002 WL 976001 (D. Del. May 3, 2002). The

Rooker-Feldman doctrine applies in cases "brought by [a] state-court loser [] complaining of
injuries caused by the state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments." Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005).
El:Bey couches his claims as violations offederal criminal law, the Administrative
Procedure Act and conspiracy pursuant to 42 U.S.c. § 1986. It is evident, however, that he
actually seeks review and rejection of Court of Chancery's November 23,2011 opinion.
Plaintiffs claims fall under the purview of the Rooker-Feldman doctrine and, therefore, the
Court cannot exercise jurisdiction. Allowing Plaintiff's claims to proceed against Defendants
would allow him to use the federal courts to appeal state court judgments and, thus, would run
afoul of the Rooker Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);

District ofColumbia Court ofAppeals v. Feldman, 460 U.S. 462,482 (1983). Thus, to the
extent that Plaintiff seeks to have this Court invalidate the order of the Court of Chancery, it
lacks the jurisdiction to do so.

2. Younger Abstention Doctrine
The court does not know the current status of the Court of Chancery case. It may be that

3The Rooker-Feldman doctrine refers to principles set forth by the Supreme Court in
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District ofColumbia Court ofAppeals v.
Feldman, 460 U.S. 462 (1983). Because the doctrine divests the court of subject matter
jurisdiction, it may be raised at any time by the court sua sponte. Desi's Pizza, Inc. v. City of
Wilkes-Barre, 321 F.3d 411,419 (3d Cir. 2003); Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77
(3d Cir. 2003).

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the case is pending or is on appeal. The abstention doctrine as defined in Younger v. Harris, 401

u.s. 37 (1971), provides that federal courts are not to interfere with pending state criminal
proceedings, has been extended to civil cases and state administrative proceedings, and applies
until all appellate remedies have been exhausted. Middlesex County Ethics Comm. v. Garden
State Bar Ass 'n, 457 U.S. 423 (1982); Huffman v. Pursue Ltd, 420 U.S. 592, 608 (1975).

Three requirements must be met for the application of the Younger doctrine: (1) the
existence of an ongoing state proceeding which is judicial in nature; (2) an ongoing state
proceeding which implicates important state interests; and (3) an ongoing state proceeding which
presents an adequate opportunity to raise constitutional challenges in the state proceeding. Id at
431-432. Additionally, the state proceeding need not be ongoing at the time the federal
complaint is before the court as long as the plaintiff had an adequate opportunity to resolve the
federal issue in a state proceeding. Huffman v. Pursue Ltd, 420 U.S. at 608.
It is not clear if there is an ongoing state judicial proceeding. Nonetheless, the State of

Delaware has a substantial interest in the fair administration of real estate matters. Notably, State
court proceedings provide plaintiff with an adequate opportunity to present any potential federal
claims. Based upon the foregoing, to the extent there are ongoing proceedings, under the
Younger abstention doctrine, the court must abstain from exercising jurisdiction over plaintiffs

claims.

C.

Frivolous Claims

EI:Bey raises claims under federal criminal statutes. To the extent that EI:Bey seeks to
impose criminal liability upon the defendants pursuant to the criminal statutes upon which he
relies, he lacks standing to proceed. See Allen v. Administrative Office ofPennsylvania Courts,

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270 F. App'x 149, 150 (3d Cir. 2008) (not published); see United States v. Friedland, 83 F.3d
1531, 1539 (3d Cir. 1996) ("[T]he United States Attorney is responsible for the prosecution of all
criminal cases within his or her district."). The decision of whether to prosecute, and what
criminal charges to bring, generally rests with the prosecutor. See United States v. Batchelder,
442 U.S. 114, 124 (1979).
In addition, the Administrative Procedure Act is inapplicable to the facts as alleged.
Finally, EI:Bey mentions 42 U.S.C. § 1986. A cognizable 42 U.S.C. § 1985 claim is a
prerequisite to stating a claim under § 1986. Robison v. Canterbury Vill., Inc., 848 F.2d 424, 431
n.lO (3d Cir.l988); Brawer v. Horowitz, 535 F.2d 830, 841 (3d Cir. 1976). EI:Bey has not
properly pled a § 1985 conspiracy under any viable legal theory and, therefore, the Court will
dismiss the § 1986 claim.
For the above reasons, the court will dismiss the complaint as frivolous pursuant to
pursuant to 28 U.S.C. § 1915(e)(2)(B).4

V. CONCLUSION
F or the above reasons the court will dismiss the complaint as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B). Amendment of the complaint would be futile.
An appropriate order will be entered.

~ ~ C't

,2012

Wilmmgton, Delaware

4The court also notes that the Court of Chancery is immune from suit. See Brooks­
McCollum v. Delaware, 213 F. App'x 92, 94 (3d Cir. 2007) (not published) (Delaware State
Courts have Eleventh Amendment sovereign immunity from § 1983 claims).
10