Bey v. United States of America

Filing 7

MEMORANDUM Signed by Judge Gregory M. Sleet on 5/18/2017. (lmm)

IN THE UNITED STATES DISTRJCT COURT
FOR THE DISTRJCT OF DELAWARE
NYCERE EZIKIEL BEY,
Plaintiff,

v.
UNITED STATES OF AMERJCA,
Defendant.

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) Civ. Action No. 17-162-GMS
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MEMORANDUM
The plaintiff, Nycere Ezikiel Bey ("Bey"), commenced this action on February 15, 2017.
(D .I. 1.) He appears pro se and was granted permission to proceed in form a pauper is pursuant to
28 U.S.C. § 1915. (D.I. 5.) The court proceeds to review and screen the complaint pursuant to
28 U.S.C. § 1915(e)(2)(B).
I.

BACKGROUND
Bey filed several documents when he commenced this case including: (1) a notice of tort

claim and opportunity to cure, naming the tortfeasor as the United States of America/City of
White Plains and referring to an ongoing injury; (2) an affidavit in support of tort signed by Ali
Anu-El ("Anu-El); (3) an obligation signed by Anu-El; (4) certificate of non-response and
opportunity to cure; (5) negative averment signed by Anu-El; (6) notice of lien; and (7) affidavit
of notice of default. It is not entirely clear, but the negative averment seems to state that either
Anu-El's or William Cornell Armstrong, Jr.'s ("Armstrong") constitutional rights were violated
by police officers/detectives in the City of White Plains, New York in October 2003. The

seems that when there was no response to the demand, Bey deemed

Bey also filed a motion for summary judgment. (D.1. 3.) However, the motion refers to debtor
Curtis Lamarr Flanagan, not Armstrong.

II.

STANDARD OF REVIEW
A federal court may properly dismiss an action sua sponte under the screening provisions

of28 U.S.C. § 1915(e)(2)(B) if"the action is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in

forma pauperis actions). 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 Bey
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 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, 490 at 327-28; Wilson v.

Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
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 Rule 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

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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 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 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544 (2007). A
plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See

Johnson v. City ofShelby, _U.S._, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed,
however, for imperfect statements of the legal theory supporting the claim asserted. See id. at
346.
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must
plead to state a claim; (2) identify allegations that, because they are no more than conclusions,
are not entitled to the assumption of truth; and (3) when there are well-pleaded factual
allegations, the court should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief. Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (internal citations and quotations omitted). Elements are sufficiently alleged when the
facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense." Id.

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I

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III.

DISCUSSION
The documents identify Bey as having a limited power of attorney for Anu-El, and Anu-

El as a secured party/creditor of debtor Armstrong. Bey states that says the defendants have
violated several provisions of the Uniform Commercial Code, admiralty law, and the
Constitution, all of which, it appears, happened in 2003. Bey states that the United States is a
corporation and the City of White Plains is a sub-corporation under the United States, its parent
corporation.
The allegations in the complaint are both legally and factually frivolous. As pied, there is
no legal basis for Bey's claims. 1 Indeed, the allegations are conclusory, somewhat delusional,
and in the court's experience and common sense, lead it to recognize that the complaint does not
state a plausible claim for relief. 2 See Iqbal, 556 U.S. at 679.
IV.

CONCLUSION
For the above reasons, the court will: (1) deny as moot the motion for summary judgment

(D.I. 3); and (2) dismiss the complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The court finds amendment futile.
An appropriate order will be entered.

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1

To the extent the claims accrued in 2003, it appears from the face of the complaint that
they are time-barred, the complaint having been filed some 14 years later.
2

Federal courts do not permit a non-attorney to engage in the unauthorized practice of law
by pursuing an action pro se with a limited power of attorney. Harris v. Philadelphia Police
Dep't, 2006 WL 3025882 (E.D. Pa. Oct. 20, 2006); accord Montelione v. Corbett, 2008 WL
1994816 (M.D. Pa. May 2, 2008). As a non-attorney, Bey may not act as an attorney other
individuals and may only represent himself in this court. See 28 U.S.C. § 1654.
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J.

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