Chang v. Bradley et al

Filing 30

MEMORANDUM OPINION - Signed by Judge Colm F. Connolly on 11/9/2018. (lak)

Case 1:16-cv-01008-CFC Document 30 Filed 11/09/18 Page 1 of 12 PageID #: 405

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WEIH STEVE CHANG ,
Plaintiff,
Civil Action No. 16-1008-CFC

V.

JUDGE WILLIAM C. BRADLEY, et al.,
Defendants.

Weih Steve Chang, Hockessin, Delaware. Pro Se Plaintiff.
Mark L. Reardon, Esquire, Eckert Seamans Cherin & Mellott, LLC, Wilmington,
Delaware. Counsel for Defendant Judge William C. Bradley.
Joseph Clement Handlon, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants State of Delaware Office of
Management and Budget, Office of Pensions, and Division of Revenue.

MEMORANDUM OPINION

f"":

November
2018
Wilmington, Delaware

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INTRODUCTION

Plaintiff Weih Steve Chang ("Plaintiff'), who proceeds prose, commenced this
action on October 31, 2016. (D.I. 1) Defendants moves to dismiss. (D.I. 7, 13) Plaintiff
opposes both motions. (D.I. 17) Plaintiff also filed a motion for direct certification of
questions of law (D.I. 12) and a motion to compel (D.I. 20), and later asked the Court to
postpone ruling on the motion for certification and to withdraw the motion to compel.
(D.I. 26) Defendants State of Delaware Office of Management and Budget ("OMB"),
Office of Pensions ("OOP"), and Division of Revenue ("DOR") (together "State
Defendants") recently filed a motion to stay discovery. (D.I. 29)
II.

BACKGROUND

Plaintiff is a frequent litigator in state and federal courts. According to the
Complaint, the claims arise under U.S. Constitution's Equal Protection Clause as well
as the Commerce Clause, Article I, Section 8, Clause 3, which prohibits a state from
passing legislation that improperly burdens or discriminates against interstate
commerce. (Id. at 2) Plaintiff also raises supplemental State claims for violations of the
Delaware Constitution. (Id. at 2, 8, 9) In the civil cover sheet, Plaintiff frames the
matter as a taxpayer lawsuit seeking recovery of overpayment, as well as a civil rights
action for violations of the Equal Protection Clause and the Commerce Clause. ( See
D.I. 1-1 )
Plaintiff, a resident of the State of Delaware since 2004, alleges that he has paid
state and federal income taxes and business taxes. Plaintiff alleges that Defendant
Judge William C. Bradley ("Judge Bradley") engaged in sexual misconduct with minors

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from the 1970's through the 1990's, illegally concealed the crimes, managed to evade
civil and criminal claims, became a judge, received a judicial salary, retired from his
judicial position, and continues to receive a State pension and other State benefits at
taxpayers' expense. (D.I. 1 at 1-3) Plaintiff alleges that he has taxpayer standing to
enjoin Judge Bradley's judiciary pension because he contributed to public funds and the
public funds were directly expended to compensate Judge Bradley. (Id. at 5, 7)
The Complaint refers to three victims, one of whom is Wayne Averill ("Averill"),
an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware. The
Court takes judicial notice that Averill filed a lawsuit against Judge Bradley in the
Superior Court of the State of Delaware in and for New Castle County, Averill v.

Bradley, C.A. No. N10C-07-128-JRJ (Del. Super.), where it remains pending. Attached
to the instant Complaint are two powers of attorney executed by Averill to allow Plaintiff
to act on his behalf. 1 (Id. at Ex. C)
Counts I and II are raised under Delaware law and allege violations of the
Delaware Constitution, and Counts Ill and IV are raised under federal law and allege
violations of the U.S. Constitution. Count I, raised against Judge Bradley, alleges
violations of the Delaware Constitution, Article I, § 19, holding office during good
behavior. Count I states that, because Judge Bradley allegedly committed heinous

1

Parties may proceed in federal court only prose or through counsel. See 28 U.S.C.
§ 1654. Federal courts do not permit a non-attorney to engage in the unauthorized
practice of law by pursuing an action pro se with an individual's limited power of
attorney. See Harris v. Philadelphia Police Dep't, 2006 WL 3025882 (E.D. Pa. Oct. 20,
2006); see also See Osei-Afriyie v. Medical Coll. of Pa., 937 F.2d 876, 882-883 (3d Cir.
1991) (a non-lawyer with a power of attorney is not permitted to represent his family
members in court). Plaintiff is not a licensed attorney and, therefore, he cannot
represent or file documents on beh~lf of Averill.
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crimes during his tenure on the bench, Judge Bradley violated his oath of office as a
qualification for any office of public trust. (Id. at 8-9)
Count 11 is raised against the OOP. It alleges unlawful expenditure of public
funds in violation of the Delaware Constitution Article 11, § 21. Count II alleges that
Judge Bradley should have been arrested, tried, and convicted, making him ineligible to
hold his judgeship and receive his judicial salary and pension. Count II alleges Plaintiff
was injured by the OOP's unlawful expenditures of public funds to Judge Bradley.
Count Ill is raised against the OOP and DOR. It alleges unlawful taxation in
violation of the Equal Protection Clause by the DOR and OOP for their unlawful portion
of taxation and expenditure of public funds, injuring all taxpayers. It also alleges the
DOR violated Plaintiff's right to due process when it collected taxes from his interstate
business revenues and employment income and passed them onto the OOP to fund the
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unlawful expenditure for compensation" such as "judicial pensions and other

retirements benefits to Judge Bradley. (Id. at 10)
Count IV is raised against the OOP and DOR and alleges unlawful taxation in
violation of the Commerce Clause. Plaintiff alleges Defendants injured his business
clients and employers in other federal jurisdictions because State Defendants knowingly
authorized unlawful expenditures of public funds to compensation Judge Bradley
despite his interstate crimes. The Complaint alleges the unlawful taxation by DOR
improperly burdens or discriminates against interstate commerce.
Plaintiff seeks declaratory relief and injunctive relief, as well as compensatory
damages. (Id. at 12)

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Defendants move for dismissal on the grounds that: (1) Plaintiff lacks standing to
assert the claims; (2) the allegations are frivolous and fail to state claims; (3) State
Defendants are immune from suit; (4) State Defendants are not "persons" capable of
suit under 42 U.S.C. § 1983; and (5) the Court lacks jurisdiction over the State claims.
All Defendants ask the Court to enjoin Plaintiff from filing further actions without leave of
court because of his frivolous and vexatious litigation in state and federal courts.

Ill.

LEGAL STANDARDS
In reviewing a motion filed under Fed. R. Civ. P. 12(b)(6), the Court must accept

all factual allegations in a complaint as true and take them in the light most favorable to
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Because Plaintiff proceeds

prose, 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, 551 U.S. at 94. A court may consider the pleadings, public record, orders,
exhibits attached to the complaint, and documents incorporated into the complaint by
reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A
Rule 12(b)(6) motion may be granted only if, accepting the well-pleaded allegations in
the complaint as true and viewing them in the light most favorable to the complainant, a
court concludes that those allegations "could not raise a claim of entitlement to relief."

Bell At/. Corp. v. Twombly, 550 U.S. 544, 558 (2007).
"Though 'detailed factual allegations' are not required, a complaint must do more
than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of
a cause of action."' Davis v. Abington Mem'I Hosp., 765 F.3d 236,241 (3d Cir. 2014)
(quoting Twombly, 550 U.S. at 555). The Court is "not required to credit bald assertions

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or legal conclusions improperly alleged in the complaint." In re Rockefeller Ctr. Props.,

Inc. Sec. Litig., 311 F.3d 198,216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory supporting the claim asserted."

Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014).
A complainant must plead facts sufficient to show that a claim has "substantive
plausibility." Id. at 347. That plausibility must be found on the face of the complaint.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to draw the reasonable
inference that the [accused] is liable for the misconduct alleged." Id. Deciding whether
a claim is plausible will be a "context-specific task that requires the reviewing court to
draw on its judicial experience and common sense." Id. at 679.

IV.

DISCUSSION
A.

Standing

The Court turns first to the issue of standing. The Complaint ~lleges Plaintiff has
taxpayer standing to enjoin Judge Bradley's judiciary pension because Plaintiff
contributed to public funds, and the public funds were directly expended to compensate
Judge Bradley. All Defendants assert that Plaintiff does not have standing to assert the
taxpayer claims.
"[S]tate taxpayers have no standing under Article Ill to challenge state tax or
spending decisions simply by virtue of their status as taxpayer." Nichols v. City of

Rehoboth Beach, 836 F.3d 275,280 (3d Cir. 2016) (internal quotations and citation
omitted). Federal and state taxpayers cannot show Article Ill standing based on their
status as taxpayers "because the alleged injury is not concrete and particularized, but

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instead a grievance the taxpayer suffers in some indefinite way in common with people
generally." Id. (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006)
(internal citations and quotation marks omitted).
Moreover, under Delaware law, taxpayer standing is "reserved for a narrow set of
claims involving challenges either to expenditure of public funds or use of public lands."
Lechliter v. Delaware Dep't of Nat. Res. & Envtl., 2015 WL 9591587, at *11 (Del. Ch.
Dec. 31, 2015). "It is focused on whether use of public funds or property itself is legal,
not merely on the process by which decisions regarding such use are made-otherwise,
the breadth of taxpayer standing would be near-limitless." Lechliter v. Delaware Dep't
of Nat. Res. Div. of Parks an.d Recreation, 2015 WL 7720277, at *7 (Del. Ch. Nov. 30,
2015).
It is clear from the allegations that Plaintiff does not have taxpayer standing to
obtain the relief he seeks. See e.g., Reeder v. Wagner, 2009 WL 1525945 (Del. 2009)
(State residents did not have "taxpayer standing" to bring action for a declaratory
judgment that a state representative received pay as both a public school teacher and
representative for coincident hours in violation of the State of Delaware Compensation
Policy).
Nor does Plaintiff have standing to impose criminal liability on Judge Bradley to
the extent that is his intent. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
("[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another."); see also Rose v. Husenaj, 708 F. App'x 57, 60 (3d Cir.
2017) (lessor who sought to impose criminal liability against lessee lacked standing).

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Accordingly, the Court will grant the motions to dismiss on the basis of lack of
standing.

B.

Eleventh Amendment

State Defendants move for dismissal based upon immunity from suit. The
Eleventh Amendment of the United States Constitution protects an unconsenting state
or state agency from a suit brought in federal court by one of its own citizens, regardless
of the relief sought. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996);

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman v. Jordan,
415 U.S. 651 (1974). As agencies of the State of Delaware, State Defendants are
immune from suit under the Eleventh Amendment. See e.g. Walter v. Division of

Revenue for State of Delaware, 961 F. Supp. 97, 99 (D. Del. 1997), affd, 141 F.3d 1'155
(3d Cir. 1998 (table) (DOR has Eleventh Amendment immunity from suit); Gresham v.

State of Delaware State Benefits Office, 2018 WL 716989 (D. Del. Feb. 5, 2018) (Office
of Management and Budget has Eleventh Amendment immunity from suit).
State Defendants are immune from suit. Therefore, the Court will grant the
motion to dismiss on this ground.

C.

42 U.S.C. § 1983

State Defendants also move for dismissal of the § 1983 claims as frivolous and
for failure to state a claim upon which relief may be granted. In Plaintiff's opposition he
states that this is not a 42 U.S.C. § 1983 action. (D.I. 17 at 4) In essence, Plaintiff
concedes there are no federal claims. Given Plaintiff's position, the Court does not
have jurisdiction because the parties are not diverse and there is no federal question.

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In the alternative, and while Plaintiff claims he does not invoke 42 U.S.C. § 1983,
liberally construing the Complaint, Plaintiff alleges constitutional violations by the 0MB,
OOP and DOR, thus implicating the statute. When bringing a § 1983 claim, a plaintiff
"must allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person acting
under color of state law."2 West v. Atkins, 487 U.S. 42, 48 (1988).
As discussed, State Defendants are immune from suit. In addition, the claims
against State Defendants are barred by Will v. Michigan Department of State Police,
491 U.S. 58, 69 (1989), which holds that neither states nor state officials sued in their
official capacities for money damages are "persons" within the meaning of § 1983. See
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
In his opposition, Plaintiff contends the claims are raised against Judge Bradley
as a State actor and not a private citizen. He states the alleged acts occurred
"sometimes in judicial chambers in 1990's and continued until 2008." (D.l. 17 at 2)
Plaintiff may not amend his complaint through his opposition brief, and these facts may
not be considered by the Court. See Commonwealth of Pa. ex rel. Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (citing Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1107 (7th Cir. 1984) ('Tl]t is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss."). Notably, Count I, the only
claim against Judge Bradley, alleges violations of the Delaware Constitution. It does
not allege violations of federal law or the United States Constitution.

2

A Commerce Clause claim may be raised under§ 1983. See e.g., Tri-M Group, LLC
v. Sharp, 705 F. Supp. 2d 335, 342-43 (D. Del. 2010); Wickes Companies, Inc. v.
national Gypsum Co., 1986 WL 9941, at *2 (D. Del. 1986).

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Moreover, even had Plaintiff raised a § 1983 claim against Judge Bradley, it is
time-barred. For purposes of the statute of limitations,§ 1983 claims are characterized
as personal injury actions. Wilson v. Garcia, 471 U.S. 261, 275 (1985). In Delaware,

§ 1983 claims are subject to a two-year limitations period. See 10 Del. C. § 8119;
Johnson v. Cullen, 925 F. Supp. 244, 248 (D. Del. 1996). Section 1983 claims accrue
"when the plaintiff knew or should have known of the injury upon which its action is
based." Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). The
alleged wrongful acts of Judge Bradley last occurred in 2008, yet Plaintiff did not
commence this action in 2016, long past the two-year limitation period. The§ 1983
claims against Judge Bradley are clearly time-barred.
Therefore, the Court will grant the motions to dismiss the § 1983 claims.

D.

Non-cognizable Claims

The allegations are conclusory, frivolous, and the claims are not cognizable. For
example, Plaintiff sued State Defendants who are immune from suit. Plaintiff attempts
to raise a claim under Article 1, § 19 of the Delaware Constitution, but it is far from clear
that there is a private right of action to raise such a claim. In the one State with reported
decisions where an action has been filed under a similar article of a State Constitution,
the claim has been raised by the officer holder, not a third party like Plaintiff. See e.g.,

Garrard Cty. Fiscal Court v. Layton, 840 S.W .2d 208 (Ky. Ct. App. 1992). Plaintiff also
attempts to raise a claim under Article II,§ 21 of the Delaware Constitution which
speaks to persons convicted of crimes involving dishonesty, but there are no allegations
that Judge Bradley was ever convicted of a crime. Plaintiff speaks to unlawful conduct
by Judge Bradley, but the claims are time-barred, and Plaintiff was not one of Judge

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Bradley's alleged victims. Nor may Plaintiff, a non-attorney, raise claims or seek
remuneration on behalf of others, which seems to be his intent. In addition, Delaware
Courts are "unaware of any authority that allows a private citizen to bring civil suit on
purported violations of judicial rules or canons." Chang v. Mayo, 2016 WL 3640260, at
*3 (Del. Super. June 28, 2016).
Finally, the Court takes judicial notice of the numerous actions filed by Plaintiff,
some seeking recovery or relief for Judge Bradley's alleged misconduct. 3 The Court's

3

All Defendants ask the Court to enjoin Plaintiff from filing further litigation without leave
of court because of Plaintiff's documented litigation history. (D.I. 7, D.I. 13) At this time,
the Court declines to do so. See Chang v. Strine, Civ. No. 16-1050-GMS, at D.I. 11 n.2
(D. Del. Apr. 3, 2018). Plaintiff is admonished that the Court will not countenance
repeated filings against the same defendants raising the same issues. Plaintiff's
litigiousness began by filing cases involving a false claims action and claims relating to
child custody issues and then expanded to general claims regarding prosecution of
crimes of child molestation. Chang v. Children's Advocacy Center of Delaware [CACJ,
Civ. No. 15-442-GMS (D. Del.) (false claims action that CAC does not use a mandated
multi-disciplinary team approach when conducting child abuse investigation and
treatment, dismissed on motions and currently on appeal); Chang v. Mayo, Civ. No. 15901-SLR (D. Del.) (sealed complaint against State Family Court Commissioner Jennifer
L. Mayo alleging judicial misconduct, voluntarily dismissed after Plaintiff's request for a
stay was denied); Chang v. State of Delaware, Civ. No. 15-963-LPS (D. Del.) (complaint
against Delaware Department of Services for Children, Youth and Their Families, CAC,
City of Wilmington and others, relating to child custody issues, dismissed and on
appeal); Chang v. Strine, Civ. No. 16-1050-GMS (D. Del.) (claims against Delaware
State Judges asserting Equal Protection claims for denial of requests for legal
representation in action alleging sexual molestation by a judicial officer on behalf of
alleged victims of child molestation, dismissed on motion); Chang v. Children's
Advocacy Center of Delaware, Inc., C.A. No. 11632-VCS (Del. Ch.) (complaint
purportedly on behalf of child victims, alleging claims against numerous state officials,
employees and state deputy attorneys general regarding alleged deficiencies in
protecting children, case dismissed for failure to state a claim and lack of standing, and
appeal dismissed); Matter of Pet. of Chang for Writ of Mandamus, 2016 WL 4382643
(Del. Aug. 18, 2016) (dismissing mandamus petition seeking arrest of former state
judge); Chang v. Mayo, C.A. No. N15C-10-100 EMO, 2016 WL 3640260 (Del. Super.
June 28, 2016) (similar to Civ. No. 15-901-SLR, alleging claims against Commissioner
Mayo dismissed due to absolute judicial immunity, lack of a private right of action, and
sovereign immunity); Matter of Pet. of Chang for Writ of Mandamus, 2016 WL 5899243
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experience and common sense, lead it to recognize that the Complaint does not state
facially plausible claims for relief. See Iqbal, 556 U.S. at 679.

E.

Supplemental Jurisdiction

Counts I and II raise supplemental claims under Delaware law for alleged
violations of the Delaware Constitution. Having concluded the Complaint fails to state
cognizable federal claims, the Court declines to exercise jurisdiction over the
supplemental State law claims. See 28 U.S.C. § 1367; De Asencio v. Tyson Foods,

Inc., 342 F .3d 301, 309 (3d Cir. 2003).

V.

CONCLUSION
For the above reasons, the Court will: ( 1) grant Defendants' motion to dismiss

(D.I. 7, 13); (2) deny as moot Plaintiff's motion for direct certification of questions of law
and motion to compel (D.I. 12, 20); (3) deny as moot Defendant's motion to stay
discovery (D.I. 29); and (4) decline to exercise supplemental jurisdiction. The Court
finds amendment futile.
An appropriate Order follows.

(Del. Oct. 10, 2016) (dismissing second mandamus petition seeking arrest of former
Judge Bradley).
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