Bey v. September Limited Liability Company
MEMORANDUM - Signed by Judge Gregory M. Sleet on 5/8/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SHARIF MOZAAR MUSTAFA EL:BEY, )
formerly known as Alton Cannon,
) Civ. No. 11-1225-GMS
SEPTEMBER LIMITED LIABILITY
COMP ANY, et aI.,
The plaintiff, Sharif Mozaar Mustafa El:Bey ("El:Bey"), formerly known as Alton
Cannon, filed a complaint on December 13,2011. (D.L 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 malicious and frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
II. FACTUAL AND PROCEDURAL BACKGROUND
EI:Bey cites to numerous federal criminal and civil statutes, the United States and
Delaware Constitutions, and numerous foreign laws. The civil cover sheet describes the instant
action as a "fraudulent conveyance/transfer" pursuant to 18 U.S.C. § 1001. 1 The complaint is
silent as to jurisdiction, but the civil cover sheet states that jurisdiction rests in this court by
reason of a federal question and diversity of citizenship of the parties. EI:Bey amended the
complaint on March 9, 2012, followed by a motion to amend the complaint on March 30, 2012.
A federal criminal statute referring to fraud and false statements.
(D.I. 7, 8.) EI:Bey names twenty-three defendants including the State of Delaware, the Court of
Chancery of the State of Delaware ("Court of Chancery"), the General Assembly, as well as
numerous other State and Non-State actors. Four of the defendants in the instant complaint (i.e.,
the Wilmington Police Department ("Police Department"), Robert Martin ("Martin"), Tina
D' Antonio ("D'Antonio"), and the Court of Chancery) were named as defendants in EI:Bey v.
Wilmington Police Department, Civ. No. 11-1200-GMS, dismissed as frivolous by this court on
March 13,2012. No relief is sought by EI:Bey in the original complaint. The amended
complaint seeks equitable, affirmative, and injunctive relief. (D.I. 7.)
As discussed in Civ. No. 11-1200-GMS, EI:Bey filed a complaint in the Court of
Chancery to preliminarily and permanently enjoin the Police Department, Martin, and D' Antonio
from encroaching and trespassing on land to which EI:Bey claimed title. (D.I. 2, Ex. Nov. 23,
2011 Court of Chancery Opinion ("the opinion").) As with Civ. No. 11-1200-GMS, 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 three weeks following
the Court of Chancery November 23, 20110pinion.
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. EI: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. After
encounters with the realtor, potential buyers, and the Police Department, EI:Bey was told to leave
the property and warned against returning.
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 the defendant Vestinus, LLC ("Vestinus") on November 16,2010, and that Vestinus
transferred the property to the defendant September Limited Liability Company ("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.
El:Bey contends that the property at issue is abandoned and that a title search did not
provide any information that a deed remains on file or that there are liens against the property.
EI:Bey contends that he took possession of the property and seems to alleges that it is being sold
unlawfully because Vestimus failed to take physical possession, tenancy, and occupancy of the
property. EI:Bey contends that the Court of Chancery, in ruling against him, "discriminatorily,
arbitrarily, maliciously, reckless, and capriciously" violated his First Amendment right to redress
his grievance without a valid reason or just cause. In essence, EI:Bey asks this court to review
the ruling of the Court of Chancery.
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 El: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 ifit "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).
"A separate standard for maliciousness is not as well established." Abdul-Akbar v.
Department o/Corr., 910 F. Supp. 986 (D. Del.,1995), aff'd, 111 F.3d 125 (3d Cir.) (table
decision), cert. denied, 522 U.S. 852 (1997). A court that considers whether an action is
malicious must, in accordance with the definition of the term "malicious," engage in a subjective
inquiry into the litigant's motivations at the time of the filing of the lawsuit to determine whether
the action is an attempt to vex, injure, or harass the defendant. Deutsch, 67 F.3d at 1086.
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.
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 Hasp., 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.'"
Id. The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Id. "[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 the pleader is entitled to relief." Id. (quoting
Fed. R. Civ. P. 8(a)(2)).
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), a judgment 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. '" Jean Alexander Cosmetics, Inc.
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 determination 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
EI:Bey raised the same or similar claims in the Court of Chancery. He merely continued
with his claims in this court when the Court of Chancery ruled against him. This is the second
lawsuit EI:Bey has filed in this regard. 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, those claims are also
barred. See CoreStates Bank, NA. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1994).
El:Bey's time to raise his claims occurred when he unsuccessfully sought recovery in the Court
of Chancery. El: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
final judgments of a state court in judicial proceedings.2 Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); see Power v. Department o/Labor, 2002 WL 976001 (D. Del. May 3, 2002). The
2The 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).
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).
EI:Bey couches his claims as violations of federal criminal and civil law. It is evident,
however, that he actually seeks review and rejection of Court of Chancery's November 23,2011
opinion. His claims fall under the purview of the Rooker-Feldman doctrine and, therefore, the
court cannot exercise jurisdiction. Allowing EI:Bey's claims to proceed against the 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 EI:Bey seeks to have this court invalidate the order ofthe 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
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 a plaintiff Like El:Bey with an adequate opportunity to present any
potential federal claims. Based upon the foregoing, whether or not there are ongoing
proceedings, under the Younger abstention doctrine, the court must abstain from exercising
jurisdiction over EI:Bey's claims.
Frivolous and Malicious Claims
EI:Bey raises claims under federal criminal statutes. To the extent that El: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,
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 court find the filing of the instant complaint malicious. In the Third
Circuit, when considering whether an action is malicious, the court engages in a subjective
inquiry into the litigant's motivations at the time of the filing of the lawsuit to determine whether
the action is an attempt to vex, injure, or harass the defendant. Deutsch, 67 F.3d at 1086. Other
circuits have offered more objective instances of malicious claims. For example, a complaint is
malicious when it "duplicates allegations of another [ ] federal lawsuit by the same plaintiff."
Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993). In addition, a district court may dismiss a
complaint as malicious if it is plainly abusive of the judicial process or merely repeats pending or
previously litigated claims. Crisafi v. Holland, 655 F.2d 1305,1309 (D.C. Cir. 1981); Van Meter
v. Morgan, 518 F.2d 366 (8th Cir. 1975); Duhart v. Carlson, 469 F.2d 471 (lOth Cir. 1972); see
also Banks v. Gillie, 2004 WL 5807334 (E.D. La. Feb. 25,2004) (duplicative and repetitive
complaints are considered malicious for purposes of § 1915); McGill v. Juanita Kraft Postal
Serv., 2003 WL 21355439, at *2 (N.D. Tx. June 6, 2003) (complaint is malicious when it
'''duplicates allegations of another pending federal lawsuit by the same plaintiff or when it raises
claims arising out of a common nucleus of operative facts that could have been brought in the
prior litigation") (quotations omitted). EI:Bey continues to file repetitive claims and/or claims
arising out of a common nucleus operative facts, even though those claims have been dismissed.
The instant complaint falls squarely in the category of malicious litigation.
Based upon the foregoing, the court concludes that EI:Bey's complaint is both frivolous
and malicious within the meaning of28 U.S.C. § 1915(e)(2)(B). Therefore, the court will
dismiss the complaint. 3
3The court also notes that the State of Delaware, the General Assembly, and the Court of
Chancery are immune from suit. To the extent that EI:Bey attempts to raise violations of his
constitutional rights, many of the defendants are not State actors. In addition, some defendants
have judicial immunity, while others had no personal involvement and, it appears, are named as a
defendant based upon their supervisory positions.
For 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. All pending motions will
be denied as moot. (D.I. 3, 8.)
An appropriate order will be entered.
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