JOLLY v. UNITED STATES OF AMERICA et al

Filing 19

Order granting 2 MOTION for Leave to Proceed in forma pauperis and REPORT AND RECOMMENDATION re 1 Complaint. ORDER denying 6 MOTION to Produce visual and audio numbers, 14 MOTION to Compel, 13 MOTION to Compel, 9 MOTION for Protective Or der, 16 MOTION to Compel, 15 MOTION to Compel, 10 MOTION for Protective Order, 8 MOTION to Produce access to visual and audio numbers, 7 MOTION that only plaintiff is allowed to use his SSN, 11 MOTION to Appoint Counsel, 12 MOTION to carry concealed weapon, 17 MOTION to Compel, 5 MOTION for Protective Order, 4 MOTION for Protective Order. Ordered by US Mag Judge Stephen Hyles on 12/7/11. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
WILBUR JOLLY,

:
:
Plaintiff
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
HILLARY CLINTON, and GEORGE :
W. BUSH
:
:
Defendants.
:
__________________________________

CASE NO. 4:11-CV-180-CDL-MSH

ORDER GRANING IFP
AND REPORT AND RECOMMENDATION
Plaintiff Wilbur Jolly brings this action pursuant to Title VII of the Civil Rights
Act of 1964 for employment discrimination. (Compl. 1, ECF No. 1). Along with the
filing of his Complaint, Plaintiff moved for leave to proceed in forma pauperis (“IFP”) in
this action. (ECF No. 2.) For the reasons discussed below, Plaintiff’s motion to proceed
IFP is granted. Additionally, Plaintiff has filed multiple miscellaneous motions which are
denied. Finally, since the Court is granting Plaintiff’s motion to proceed IFP, the Court
has reviewed Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and
recommends dismissal of Plaintiff’s claims.
BACKGROUND
Plaintiff filed his Complaint on November 18, 2011, pursuant to Title VII. 42
U.S.C. § 2000e, et seq. Specifically he claims that Hillary Clinton and George W. Bush
are liable to him for damages because his “ID” has been used by the United States

without his consent. (Compl. 3.) Plaintiff does not clarify in his Complaint what type of
“ID” he claims has been used, but he does distinguish this ID from his Social Security
account and number. (Compl. 3.) Further, Plaintiff claims that his credit report states
that he has been employed by the United States, although he is not and has not ever been
a government employee. (Compl. 2.) Plaintiff also claims that he cannot “get a job or
start [his] own bus[]iness because the government is using [his] ID without . . .
permission.” (Compl. 2.) Finally, Plaintiff claims that Defendants Hillary Clinton and
George W. Bush are following him through “computer chip inhabitation[.]” (Compl. 2.)
These events are alleged to have taken place in October 2011 and on November 16, 2011.
(Compl. 2.) Plaintiff seeks damages in the amount of $10 million and requests that the
government be prohibited from using his “ID” in the future or from having planes pass
him by. (Compl. 3.)
DISCUSSION
I.

Motion to Proceed IFP
Plaintiff moves to proceed in this action IFP. (ECF No. 2.) 28 U.S.C. § 1915

provides that a court may authorize a person who is unable to pay court fees to proceed in
her action so long as that person is “unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a)(1); see Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1
(explaining that 28 U.S.C. § 1915(a)(1) “applies to all persons requesting leave to
proceed IFP”).

Furthermore, 42 U.S.C. § 2000e-5(f)(1) provides that “in such

circumstances as the court may deem just, the court . . . may authorize the
commencement of the action without the payment of fees, costs, or security.” Plaintiff
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has established that he is indigent for the purposed of 28 U.S.C. § 1915. Therefore, his
motion to proceed IFP is granted.
II.

Miscellaneous Motions
Plaintiff has also filed fourteen miscellaneous motions primarily seeking relief that

cannot be granted by this Court. (ECF Nos. 4-17.) Plaintiff requests the following relief:
(1) an “order of protection against the police not to be pulled over or harassed” (ECF No.
4); (2) an order “stoping (sic) the Police from communicating thru (sic) [his] ID” (ECF
No. 5); (3) an order to “obtain [his] visual ID Number and also [his] Audio CODEC
number and change them” (ECF No. 6); (4) an order “that only [Plaintiff] is allowed to
use his social security account” and that he can use his account at any bank or car
dealership for purchases (ECF No. 7); (5) an order to “gain access to [his] audio ID
CODEC1 number and [his] visual ID . . . [and] a[n] explaintory (sic) paper of how to
program to [his] audio and visual” (ECF No. 8); (6) an order to block Hillary Clinton
from using Plaintiff’s “ID” (ECF No. 9); (7) an order to block George W. Bush from
using his “ID” (ECF No. 10); (8) appointment of counsel (ECF No. 11); (9) an order
allowing Plaintiff to carry a concealed weapon (ECF No. 12); (10) an order requiring the
Georgia Department of Motor Vehicles to “restore” Plaintiff’s driver’s license (ECF No.
13); (11) an order telling Plaintiff the name and ID of a man in a truck at Best Buy who
1

“A codec is software that is used to compress or decompress a digital media file, such as a song
or video. . . . A codec can consist of two components: an encoder and a decoder. The encoder
performs the compressing (encoding) function and the decoder performs the decompression
(decoding) function. Some codecs include both of these components and some codecs only
include one of them.” Microsoft Corporation, Codecs: frequently asked questions. What is a
codec?, http://windows.microsoft.com/en-US/windows7/Codecs-frequently-asked-questions (last
visited Dec. 7, 2011).
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“showed [Plaintiff] a computer” (ECF No. 14); (12) an order telling Plaintiff who was
logged on to his “visual” on November 9, 2011, and “the name and ID number” of a
person who was logged on to his “line of communication and [] visual” (ECF No. 15);
(13) an order notifying Plaintiff of “all ID’s” that were logged on to his “ID” this year
(ECF No. 16); and (14) that the Court obtain “records of all the funds taken out of
[Plaintiff’s] social security account” (ECF No. 17). Each of these motions is denied as
explained below.
Plaintiff provides no details of events giving rise to any of the motions, no
supporting brief for any motion, and no legal reasoning or analysis to explain why any of
these motions should be granted or how this Court would have jurisdiction to grant such
motions. Many of Plaintiff’s motions also fail to relate to his Complaint. For example,
Plaintiff’s motions to have his driver’s license restored and to carry a concealed weapon
are not within the jurisdiction of this Court and are wholly unrelated to Plaintiff’s
Complaint. Consequently, Plaintiff’s motions (ECF Nos. 4-10, 12-17) are denied.
Plaintiff, however, did move to appoint counsel which can be considered by this
Court. Under 42 U.S.C. § 2000e-5(f)(1), “in such circumstances as the court may deem
just, the court may appoint an attorney for [a] complainant . . . .” In determining whether
to appoint counsel in a civil rights action in the Eleventh Circuit, a court must consider
the following factors: “(1) the merits of the complaint, (2) the efforts of the plaintiff to
obtain counsel[,] and (3) the financial ability of the complainant to hire an attorney.”
Brooks v. Cent. Bank of Birmingham, 717 F.2d 1340, 1342 n.2 (11th Cir. 1983) (citing
Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309-10 (5th Cir. 1979). “The district
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court may also consider the ability of the complainant to understand the relevant
substantive and procedural issues.” Hunter v. Dep’t of Air Force Agency, 846 F.2d 1314,
1317 (11th Cir. 1988) (citation omitted). Ultimately, the decision whether to appoint
counsel is within the district court’s “broad discretion” and counsel should be appointed
“only in exceptional circumstances.” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.
1999) (citation omitted). Because, as explained below, Plaintiff’s complaint is meritless,
his motion to appoint (ECF No. 11) is likewise denied.
III.

Review pursuant to 28 U.S.C. § 1915(e)(2)(B)
Pursuant to 28 U.S.C. § 1915(e), “a district court must dismiss an in forma

pauperis action if the court determines that the action is frivolous or malicious[,] fails to
state a claim on which relief may be granted[,] or seeks monetary relief against a
defendant who is immune from such relief.” Thibeaux v. U.S. Attorney Gen., 275 F.
App’x 889, 892 (11th Cir. 2008) (internal quotation marks and citation omitted). An
action is frivolous when the complaint “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Additionally, “[a] case is frivolous if the
factual allegations are clearly baseless, or if it is based on an indisputably meritless legal
theory.” Johnson v. Wilbur, 375 F. App’x 960, 963 (11th Cir. 2010).
Here, Plaintiff has brought his action pursuant to Title VII. Title VII prohibits an
employer from hiring or firing an individual or otherwise “discriminat[ing] 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.”
42 U.S.C. § 2000e-2(a)(1). Plaintiff’s allegations clearly do not fall within the scope of
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Title VII. Plaintiff asserts that he is not and has not been a government employee and
Plaintiff has not alleged any discriminatory practice or action taken by the government.
(Compl. 2.) Consequently, Plaintiff’s claims that he was discriminated against by the
government in violation of Title VII lack an arguable basis in fact and are frivolous.
Furthermore, to the extent that Plaintiff is attempting to assert Title VII claims
against Hillary Clinton or George W. Bush, these claims are also frivolous. It is well
settled that Title VII claims cannot be brought against individual defendants. See, e.g.,
Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (“[R]elief under Title VII is
available against only the employer and not against individual employees. . . .”); Busby v.
City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (“The relief granted under Title VII
is against the employer, not individual employees whose actions would constitute a
violation of the Act.”) (emphasis in original). Consequently, a claim for relief under Title
VII cannot be brought against either Hillary Clinton or George W. Bush. Since these
claims are based on an “indisputably meritless” legal theory, they should be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Carroll v. Gross, 984 F.2d 392, 393
(11th Cir. 1993).
Giving the Plaintiff the benefit of the doubt as a pro se litigant, the Court could
interpret Plaintiff’s Complaint as arising under another legal theory.

See, e.g.,

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (explaining that pro
se pleadings are to be construed liberally). However, the Court is at a loss as to how to
interpret Plaintiff’s Complaint such that it would give rise to a viable cause of action
against any of the Defendants, especially since they would likely be entitled to some form
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of immunity against suit. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 586 (1998)
(discussing former president’s absolute immunity in certain circumstances and qualified
immunity for his aids and advisors); Compagnoni v. United States, 173 F.3d 1369, 1370
n.3 (11th Cir. 1999) (“The United States is generally immune from suit; it is subject to
suit only insofar as it has waived its sovereign immunity.”). “[E]ven though a pro se
pleading is to be liberally construed, it still must allege facts, which if proven true, would
entitle the plaintiff to some legal relief against the named defendant(s).” Stroeder v.
Fabian, No. 10-4336, 2010 WL 5422586, at *3 (D. Minn. Dec. 7, 2010); see also
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007) (“Even though a pro se
complaint should be construed liberally, a pro se complaint still must state a claim upon
which the Court can grant relief.”) (internal quotation marks and citation omitted).
Plaintiff has failed to allege any facts which, even if proven true, would entitle him to
some legal relief against the Defendants.

Consequently, his Complaint should be

dismissed.
CONCLUSION
For the reasons discussed above, Plaintiff’s motion to proceed IFP is granted.
Plaintiff’s

multiple

miscellaneous

motions

are

denied.

Furthermore,

it

is

RECOMMENDED that Plaintiff’s Complaint be dismissed as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). Under 28 U.S.C. ' 636(b)(1), Plaintiff may file objections to
this Recommendation in writing with the UNITED STATES DISTRICT JUDGE within
FOURTEEN (14) DAYS after being served with a copy hereof.

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SO ORDERED and RECOMMENDED, this 7th day of December, 2011.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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