Delaney v. President Barack O'Bama et al
Filing
5
ORDER DISMISSING CASE. Signed by Judge Jose E. Martinez on 6/30/2011. (afr)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case Number: 11-61444-CIV-MARTINEZ-MCALILEY
LARRY DELANEY,
Plaintiff,
vs.
PRESIDENT BARACK O'BAMA, VICE
PRESIDENT JOSEPH BIDEN, SENATOR
JAY ROCKEFELLER, DAVID
ROCKEFELLER, JOYCE DOBSON, UNITED
STATES CHEVRON OIL COMPANY, OFFBROWARD SELF-STORAGE,
Defendants.
_____________________________________/
ORDER DISMISSING CASE
THIS CAUSE came before the Court upon Plaintiff’s application to proceed in forma
pauperis (D.E. No. 4) and sua sponte upon a review of Plaintiff's complaint pursuant to 28
U.S.C. § 1915.
The Court must dismiss in forma pauperis proceedings if they are frivolous. 28 U.S.C. §
1915. A frivolous claim is one that is "without arguable merit either in law or fact." Bilal v.
Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citing Battle v. Central State Hospital, 898 F.2d
126, 129 (11th Cir. 1990)). A case is also frivolous "when it appears the plaintiff 'has little or no
chance of success.'" Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Harris v.
Menendez, 817 F.2d 737, 740 (11th Cir. 1987)). “Frivolous claims include claims ‘describing
fantastic or delusional scenarios, claims with which federal district judges are all too familiar.’”
Bilal v. Driver, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 328 (1989)).
The Plaintiff asserts claims under 42 U.S.C. § 1982, 42 U.S.C. § 1983, 42 U.S.C. §
1985, and Title VII of the Civil Rights Act of 1964. He claims that the Defendants conspired to
interfere with his civil rights by discriminating against him as a descendant of German royalty
and by interfering with his Fourteenth Amendment due process rights by preventing access to the
courts.1
Section 1982 provides that "[a]ll citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property." Plaintiff has not alleged any action by Defendants
that would interfere with any real property right. Although § 1982 has been interpreted broadly
to encompass the "not merely the enforceability of property interests acquired by black citizens
but also their right to acquire and use property on an equal basis with white citizens," Memphis v.
Greene, 451 U.S. 100, 120 (1981), it is not an all-purpose discrimination statute. See Harmon v.
Orlando Florida Sentinel, No. 89-746-CIV-ORL-19, 1991 WL 128539, at *3 (M.D. Fla. Jan. 15,
1991) (granting summary judgment on a § 1982 claim that did not involve real property interests
and therefore fell outside the scope of § 1982). Because Plaintiff has not alleged any
discrimination with regard to property, his § 1982 claim will be dismissed.
To state a claim under § 1983, the plaintiff must show “(1) a violation of a constitutional
right, and (2) that the alleged violation was committed by a person acting under color of state
law.” Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005). In this case, the Plaintiff alleges
1
Plaintiff’s factual allegations, often fantastical and semi-coherent, include many matters
that appear to be completely extraneous to his claims. The Court finds it unnecessary to detail
those factual allegations here. Any relevant factual assertions will be discussed as necessary in
the body of the analysis.
-2-
in a conclusory fashion that his Fourteenth Amendment due process rights were violated in that
he was denied access to the courts. Plaintiff has not alleged any facts showing that he was denied
access to the courts or that his due process rights were otherwise violated, however. Plaintiff
does allege that he was “tied to the whipping post,” but he appears to be speaking figuratively,
because he asserts this happened “in . . . coded case law.” Plaintiff also alleges that “President
O’bama [sic]” and “Vice President Biden” arranged “to have the Petitioner jumped by two
Hawaiians in his sleepingbag” and arranged “for a girl to poison the Petitioner at his apartment
complex.” On their face, these allegations, particularly in conjunction with Plaintiff’s other
allegations, appear fantastic and delusional. Even if the Court did not dismiss these allegations
as frivolous on their face, the Court notes that they do not appear to assert that the President and
Vice-President were acting under color of state law. “Not all actions by state employees are acts
under color of law.” Edwards v. Wallace Community College, 49 F.3d 1517, 1523 (11th Cir.
1995). “A state official acts under color of law when he exercises the authority that he possesses
by virtue of his position with the state.” Christman v. Walsh, No. 10–14127, 2011 WL 721302,
at *3 (11th Cir. Mar. 2, 2011). Plaintiff does not allege that these unnamed Hawaiians or this
unnamed “girl” poisoner were law enforcement or that their actions were made possible only
because of the Defendants’ authority pursuant to their official positions. Plaintiff’s claim under §
1983 is clearly frivolous.
“Section 1985 covers conspiracies to interfere with civil rights.” Kivisto v. Miller,
Canfield, Paddock and Stone, PLC, 413 Fed. Appx. 136, 139 (11th Cir. Jan. 25, 2011).
Plaintiff’s allegations regarding a conspiracy motivated by discriminatory animus due to his
German origin are entirely conclusory. He does not allege any facts in support of his bare
-3-
assertions. Accordingly, his § 1985 claim will be dismissed.
Finally, “Title VII makes it an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin.” Abbes v. Embraer Serv., Inc., 195
Fed. Appx. 898, 900 (11th Cir. 2006). Plaintiff has not alleged that any Defendants employed
him. Therefore, because he is not asserting a Title VII claim against his employer, that claim
shall be dismissed. Therefore, after careful consideration, it is hereby:
ORDERED AND ADJUDGED that
1. Plaintiff’s application to proceed in forma pauperis (D.E. No. 4) is GRANTED;
however, service SHALL NOT ISSUE.
2. This case is DISMISSED pursuant to 28 U.S.C. § 1915. This case is CLOSED, and
all pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of June, 2011.
____________________________________
JOSE E. MARTINEZ
UNITED STATES DISTRICT JUDGE
Copies provided to:
Magistrate Judge McAliley
All Counsel of Record
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?