Johnson-Bey v. Fitsgerald et al

Filing 9

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 1/7/22. (mal)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILBUR JOHNSON-BEY,
Plaintiff,
v.
RAY FITZGERALD, et al.,
Defendants.

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C.A. No. 21-941 (MN)

MEMORANDUM OPINION
Wilbur Johnson-Bey, Wilmington, DE – Pro Se Plaintiff

January 7, 2022
Wilmington, Delaware

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NOREIKA, U.S. DISTRICT JUDGE:
Plaintiff Wilbur Johnson-Bey (“Plaintiff”) filed this action alleging wrongful eviction in
violation of federal and state laws. (D.I. 2 at 3). He appears pro se and has been granted leave to
proceed in forma pauperis. (D.I. 8). Plaintiff has also filed a motion for injunctive relief and an
omnibus motion. (D.I. 6, 7). This Court proceeds to screen the Complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(b).
I.

BACKGROUND
The Court takes judicial notice that on October 28, 2020, the Wilmington Housing

Authority (“WHA”) filed a landlord tenant action against Plaintiff in Wilmington Housing
Authority v. Johnson, (Del. J.P. Oct. 28, 2020). The Justice of the Peace Court docket indicates
that in November 2020, the WHA filed motions for access to Plaintiff’s rental unit and, when entry
was attempted on November 6, 2020, a sign on the door stated that “there shall not be any forced
obligations or contracts to window installation” and a person heard at the door would not open it.
Trial was scheduled, and a hearing was held on March 19, 2021. A March 23, 2021 docket entry
states that “notice to Plaintiff and Defendant of time of hearing returned from post office as not
deliverable as addressed.” The same day, the Court granted WHA’s motion to execute writ of
possession in the interest of justice. A notice of writ of possession issued on April 6, 2021, and
the notice was returned from the Post Office on April 8, 2021 as “not deliverable as addressed.”
The eviction was complete on April 13, 2021 when possession was turned over to the landlord
once the locks were changed. See https://courtconnect.courts.delaware.gov/cc/cconnect/ck_public
_qry_doct.cp_dktrpt_frames?backto=P&case_id=JP13-20-005910&begin_date=&end_date=
(last visited Jan. 6, 2022).
Plaintiff alleges that, as a disabled person, his right to public housing was violated when
he was evicted without a court hearing or his presence. (D.I. 2 at 3). He also alleges that he was
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evicted in violation of Delaware Governor John Carney’s executive order of no evictions during
the COVID pandemic. (Id.).
Plaintiff wrote to WHA Executive Director John Hill (“Hill”) and Assistant Manager
Samantha Cox (“Cox”) on July 14, 2020 and submitted a tenant petition complaint concerning
window installation and other issues. (D.I. 2-1 at 55-56). He also wrote to Hill on two unknown
dates: the first letter raised the issue of WHA Security Personnel Yulonda Durant (“Durant”),
maintenance, and WHA contractors and agents who requested entry into Plaintiff’s apartment to
replace windows; the second letter complained that Durant aided and abetted Wilmington Police
Department officers in entering his apartment. (Id. at 57-58).
Plaintiff alleges that on September 25, 2020, Durant used her master key to unlock the
apartment to allow Wilmington Police Department officers to enter the apartment without a
warrant and drag Plaintiff into the hallway where he was assaulted, battered, and embarrassed in
front of other tenants all in violation of the Fourth, Fifth, and Sixth Amendments of the United
States Constitution. (D.I. 2 at 4; D.I. 2-1 at 6-9). As alleged, Defendants wanted to perform
maintenance on Plaintiff’s apartment and offered him free hotel/motel accommodations which
Plaintiff refused on the grounds that he was not required to vacate the premises when maintenance
is performed. (D.I. 2-1 at 8, 9, 14). Plaintiff alleges that WHA managers Jawana Patton (“Patton”),
Cox, and Durant intimidated and retaliated against him by repeatedly sticking in, in front of, and
under, his apartment door offers of hotel accommodations. (D.I. 2-1 at 8-9). He alleges that Cox
also slid signed and unsigned letters under the door. (Id. at 9).
On September 28, 2020, window contractors attempted to gain entry to Plaintiff’s
apartment. (D.I. 2-1 at 65). The WHA’s Notice of Legal Action 7-Day Notice to Plaintiff dated
September 29, 2020 states that Plaintiff became belligerent which resulted in the WHA calling the

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police to gain control of the situation. (Id.). The letter also states that “on September 30, 2020”,
WHA Building Manager knocked on Plaintiff’s door and asked if he would allow the contractors
to replace the windows. (Id.). According to the letter, Plaintiff refused to allow anyone to enter
the premises. (Id.). Plaintiff was advised that his conduct was unacceptable, would not be
tolerated, and was in violation of WHA rules. (Id.). Plaintiff was advised that the windows in his
apartment would be replaced on October 7, 2020. (Id.).
Plaintiff alleges that in November 2020, WHA Property Manager Felix Wilkins
(“Wilkins”) used his master key to illegally enter the apartment without a warrant to allow
Wilmington Police Department officers to enter the apartment and impersonate the sheriff. (D.I. 2
at 4; D.I. 2-1 at 11, 16, 19, 20). Plaintiff alleges that Hill gave the WHA master key to a
Wilmington Police Department officer to enter his apartment. (D.I. 2-1 at 16, 20).
Plaintiff alleges that on March 20, 2021, he was assaulted by an undercover WHA female
security officer, and the WHA evicted Plaintiff to cover up the assault and battery and to ransack,
sabotage, and steal Plaintiff’s evidence and other personal belongings. (D.I. 2 at 5).
On April 7, 2021, Plaintiff was served an eviction notice to vacate his apartment by
April 13, 2021. (D.I. 2-1 at 67). Plaintiff alleges that he was evicted from his apartment on
April 13, 2021 for filing code violations against Defendants with the Washington, D.C. HUD
office. (Id. D.I. 2 at 4). Plaintiff made telephone calls and wrote letters to arrange a date for him
to retrieve his property. (Id. at 68, 78-84). Plaintiff was advised by the WHA on June 10, 2021
that he could retrieve his personal property on June 15 and June 16, 2021. (D.I. 2-1 at 103). On
June 11, 20201, Plaintiff received confirmation of the dates. (Id.).
Plaintiff seeks compensatory and punitive damages.

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II.

LEGAL STANDARDS
A federal court may properly dismiss an action sua sponte under the screening provisions

of 28 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. See Phillips v. County of Allegheny, 515
F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff
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, 551 U.S. at 94 (citations omitted).
A complaint is not automatically frivolous because it fails to state a claim. See Dooley v.
Wetzel, 957 F.3d. 366, 374 (3d Cir. 2020) (quoting Neitzke v. Williams, 490 U.S. 319, 331 (1989));
see also Grayson v. Mayview State Hosp., 293 F.3d 103, 112 (3d Cir. 2002). “Rather, a claim is
frivolous only where it depends ‘on an “indisputably meritless legal theory” or a “clearly baseless”
or “fantastic or delusional” factual scenario.’” Dooley v. Wetzel, 957 F.3d at 374 (quoting Mitchell
v. Horn, 318 F.3d 523, 530 (2003) and Neitzke, 490 U.S. at 327-28).
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 deciding Federal Rule of Civil
Procedure 12(b)(6) motions. See 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)). Before dismissing a complaint or claims for failure to state a claim upon which
relief may be granted pursuant to the screening provisions of 28 U.S.C. § 1915, the Court, however,

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must grant a plaintiff leave to amend his complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hosp., 293 F.3d at 114.
A complaint may be dismissed only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes
that those allegations “could not raise a claim of entitlement to relief.” Bell Atl. 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’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014)
(internal quotation marks omitted). In addition, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. See Williams v. BASF
Catalysts LLC, 765 F.3d 306, 315 (3d Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
and Twombly, 550 U.S. at 570). Finally, a plaintiff must plead facts sufficient to show that a claim
has substantive plausibility. See Johnson v. City of Shelby, 574 U.S. 10 (2014). A complaint may
not be dismissed for imperfect statements of the legal theory supporting the claim asserted. See
id. at 10.
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,
assume their veracity and determine whether they plausibly give rise to an entitlement to relief.
See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016); see also Iqbal, 556 U.S. at
679 (citing Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a “context-

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specific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id.
III.

DISCUSSION
A.

Rooker-Feldman

Federal district courts are courts of original jurisdiction and have no authority to review
final judgments of a state court in judicial proceedings. Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); see Power v. Department of Labor, 2002 WL 976001 (D. Del. May 3, 2002). The landlord
tenant dispute was resolved by Delaware’s Justice of the Peace Court. To the extent Plaintiff
objects to his eviction, the Rooker-Feldman doctrine applies as this is a case “brought by [a] statecourt 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). Allowing
plaintiff’s eviction 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. 1 See
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 (1983).
Plaintiff’s claim falls within the class of cases to which the Rooker–Feldman doctrine
applies. He lost the landlord tenant suit in state court before he filed his action in the District
Court. In his complaint, he complains of injuries caused by the judgment in favor of WHA.
Plaintiff couches his claims as violations of his constitutional rights and as violations of federal
criminal law, but it is evident that he actually seeks review and rejection of the Justice of the Peace
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For the doctrine to apply, four requirements must be met: “(1) the federal plaintiff lost in
state court; (2) the plaintiff ‘complain[s] of injuries caused by [the] state-court judgments’;
(3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is
inviting the district court to review and reject the state judgments.” Great Western Mining
& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010).
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Court’s rulings. The claims fall under the purview of the Rooker-Feldman doctrine and, therefore,
this Court cannot exercise jurisdiction over the landlord tenant claims.
B.

Section 1983 or Bivens Claims

Plaintiff alleges violations of his constitutional rights. The WHA is a nonprofit agency of
the State of Delaware that provides housing to low-income individuals and families. Doe v.
Wilmington Housing Auth., 88 A.3d 654, 659 (Del. 2014). The Complaint, however, does not
allege that any defendant is a state or federal actor, an element necessary to state a civil rights
claim. See West v. Atkins, 487 U.S. 42, 48 (1988) (when bringing a § 1983 claim, a plaintiff must
allege that some person has deprived him of a federal right, and that the person who caused the
deprivation acted under color of state law); Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388, 389 (1971) (Supreme Court created a federal tort counterpart
to the remedy created by 42 U.S.C. § 1983 as it applies to federal officers).
In addition, the claims are deficiently pled. For example, the Complaint uses legal terms
without supporting facts. See Iqbal, 556 U.S. at 678 (stating that a complaint will not suffice if it
“offers [merely] ‘labels and conclusions’” or “‘naked assertion [s]’ devoid of ‘further factual
enhancement’”) (quoting Twombly, 550 U.S. at 555, 557). Indeed, merely reciting an element of
a cause of action or making a bare conclusory statement is insufficient to state a claim. See Iqbal,
556 U.S. at 678. Finally, the Complaint omits dates and names which required this Court to scour
the exhibits in an attempt to determine what Plaintiff alleged. Because the Complaint does not
meet the pleading requirements of Iqbal and Twombly, it will be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Plaintiff will be given leave to amend the constitutional claims.
C.

Criminal Statutes

The Complaint alleges violations of a number of federal criminal statutes (18 U.S.C. §§ 4,
241, 242, 245, 1503, 1504, 1512, 1513). To the extent that Plaintiff seeks to impose criminal

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liability upon Defendants pursuant to the criminal statutes upon which he relies, he lacks standing
to proceed. See Allen v. Administrative Office of Pennsylvania Courts, 270 F. App’x 149, 150
(3d Cir. 2008); 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). Therefore, the criminal
claims will be dismissed as frivolous pursuant to pursuant to 28 U.S.C. § 1915(e)(2)(B).
D.

Miscellaneous Motions

Plaintiff’s motion for injunctive relief and omnibus motion, affidavit for writ of error, writ
of mandamus, and writ of certiorari (D.I. 6, 7) will be dismissed without prejudice as premature.
Plaintiff may file renewed motions upon the filing of an Amended Complaint that raises cognizable
and viable claims.
IV.

CONCLUSION
For the above reasons, the Court will: (1) dismiss without prejudice to renew as premature

Plaintiff’s motion for injunctive relief and omnibus motion, affidavit for writ of error, writ of
mandamus, and writ of certiorari (D.I. 6, 7); and (2) dismiss the Complaint for want of jurisdiction
and pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Plaintiff will be given leave to amend those
claims that allege constitutional violations.
An appropriate Order will be entered.

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