Humphrey v. Desmond et al

Filing 16

ORDER GRANTING 10 Motion to Dismiss. This case is DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to close this case. Signed by Judge Steven D. Grimberg on 3/27/2024. (tas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MONTAY DESMOND HUMPHREY,
Plaintiff,
v.
CONOR P. DESMOND, et al.,
Defendants.

Civil Action No.
1:23-cv-00726-SDG

OPINION AND ORDER
This matter is before the Court on Defendants’ motion to dismiss [ECF 10].
After careful consideration, the Court grants the motion and DISMISSES this
case.
I.

Background
This case represents yet another attempt by Plaintiff Humphrey to avoid

payment of his tax debt, a debt which he admitted to and agreed to repay. In 2019,
Humphrey filed for chapter 7 bankruptcy.1 Shortly thereafter, Humphrey filed an
action against the United States in which he ultimately stipulated that his 20072013 and 2015 unpaid federal income tax liabilities were excluded from his
bankruptcy discharge, and agreed to satisfy his non-dischargeable tax liabilities
outside of the bankruptcy proceeding.2

1

In re Humphrey, Case No. 1:19-bk-062833 (Bankr. N.D. Ga.).

2

Montay Desmond Humphrey v. United States Internal Revenue Serv., Case No.
1:19-ap-05319 (Bankr. N.D. Ga. Nov. 5, 2019), ECF 15, ¶¶ 5–7.
1

So, in November 2020, the United States filed a collection action against
Humphrey seeking recovery of his unpaid federal income tax liabilities for tax
years 2007 through 2012, and 2015.3 In that case, the parties filed a joint motion for
entry of judgment asking this Court to enter judgment against Humphrey in the
amount of “$598,955.40 as of October 30, 2020, less payments, abatements and
credits, plus interest and other statutory additions accruing thereafter from that
date to the date of payment according to law.”4 The Court adopted and entered
the consent judgment.5 Humphrey eventually defaulted on his agreed payment
obligations, so the government filed a motion for an installment payment order.6
On January 25, 2023, the Court granted that motion and ordered that “Defendant
shall make regular installment payments of $6,500 per month to be paid by the
first day of the month by ACH debit to the United States.”7 On February 13, 2023,
the Government asked this Court to hold Humphrey in contempt for his failure to
pay as ordered.8 The Court again directed him to make the installment payments

3

United States v. Montay Desmond Humphrey, Case No. 1:20-cv-4601-SDG
(N.D. Ga.).

4

Id., ECF 10, at 2.

5

Id., ECF 11.

6

Id., ECF 13.

7

Id., ECF 15, at 1.

8

Id., ECF 17.
2

of $6,500 per month and imposed a $50 per day sanction on Humphrey until he
complied with the Court’s directive.9
Humphrey filed this case on February 16, 2023, just three days after the
Government asked this Court to hold Humphrey in contempt in the collection
action. Humphrey claims to bring his case under the Sherman Act, alleging
violations of antitrust laws, extortion, larceny, racketeering, security fraud,
conspiracy, threat to kidnapping, defamation of character, modern day slavery,
and human rights and indigenous rights violations.10
II.

Legal Standard
To withstand a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A complaint is plausible on its face when a plaintiff pleads
sufficient factual content for the court to draw the reasonable inference that the
defendant is liable for the conduct alleged. Id. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

9

Id., ECF 34.

10

ECF 1.
3

A complaint must also present sufficient facts to “‘raise a reasonable
expectation that discovery will reveal evidence’ of the claim.” Am. Dental Ass’n,
605 F.3d at 1289 (quoting Twombly, 550 U.S. at 556). At the motion to dismiss stage,
“all well-pleaded facts are accepted as true, and the reasonable inferences
therefrom are construed in the light most favorable to the plaintiff.” FindWhat Inv’r
Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011) (quoting Garfield v. NDC
Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)). This principle, however, does
not apply to legal conclusions. Iqbal, 556 U.S. at 678.
III.

Discussion
This is a patently frivolous case against Defendants, over which this Court

has no jurisdiction. Dismissal is warranted.11
A.

The United States is immune from suit under the Sherman Act.

The United States is generally immune from suit. See United States v.
Sherwood, 312 U.S. 584, 586 (1941) (citations omitted) (“The United States, as
sovereign, is immune from suit save as it consents to be sued.”). Thus, the United
States and its agencies can be sued only if they waive sovereign immunity. See
F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity

11

Defendants also argue that dismissal is appropriate for insufficient service of
process under Fed. R. Civ. P. 12(b)(5). Humphrey does not dispute that service
was improper. The Court agrees that dismissal is warranted under Rule
12(b)(5) as well.
4

shields the Federal Government and its agencies from suit.”). This immunity “also
generally extends to the employees of those agencies sued in their official
capacities.”12 See Dugan v. Rank, 372 U.S. 609, 620 (1963) (internal quotation marks
and citations omitted) (“[A] suit is against the sovereign if the judgment sought
would expend itself on the public treasury or domain, or interfere with the public
administration or if the effect of the judgment would be to restrain the
Government from acting, or to compel it to act.”). A waiver of immunity is a
prerequisite to a federal court exercising jurisdiction over the United States.
Asociacion de Empleados del Area Canalera (ASEDAC) v. Panama Canal Comm’n, 453
F.3d 1309, 1315 (11th Cir. 2006) (quoting United States v. Mitchell, 463 U.S. 206, 212
(1983)).
There is no claim or cause of action in the complaint that could plausibly
confer jurisdiction in this case. First, Humphrey claims to bring this suit under the
Sherman Act. The Court is unaware of any legislative or judicial authority waiving
the United States’ immunity to suit under the Sherman Act. O’Brien v. United
States, 18 F. Supp. 2d 1356, 1360 (N.D. Ga. 1998) (citing Sea–Land Serv., Inc. v. The
Alaska R.R., 659 F.2d 243, 245 (D.C. Cir. 1981) (“[T]he United States has not waived

12

There is nothing in the complaint that suggests any of the individually named
Defendants were acting in their individual capacities. The Court will thus
construe all claims against them as official capacity claims. Accordingly, the
suit against any individual here is, in effect, a suit against the United States.
5

its sovereign immunity from . . . antitrust . . . suits.”). And to the extent Humphrey
attempts to bring claims under any other treaty, the Court finds no waiver of
sovereign immunity that would confer jurisdiction in this case.
B.

Humphrey’s allegations fail to state a claim for relief.

Even assuming the Court had jurisdiction over this case, it would
nonetheless dismiss it under Rule 12(b)(6), as Humphrey has failed to state a claim.
The Court recognizes Humphrey is appearing pro se. Thus, it must construe the
complaint leniently, and hold it “to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even a pro
se plaintiff must comply with the applicable law and the Court’s rules. Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1998) (“[O]nce a pro se litigant is in court, he
is subject to the relevant law and rules of court, including the Federal Rules of Civil
Procedure”).
Humphrey is attempting to proceed under a sovereign citizen-type theory.
Sovereign citizens “believe that they are not subject to government authority and
employ various tactics in an attempt to, among other things, avoid paying taxes,
extinguish debts, and derail criminal proceedings.” Gravatt v. United States, 100
Fed. Cl. 279, 282 (2011). Humphrey alleges that the United States claims his “U.S.
person owes a tax, but are trying to charge [him] for that tax.”13 And in his

13

ECF 1.
6

response to the Government’s motion, Humphrey asks that this Court first address
his “status.”14 As best the Court can ascertain, Humphrey essentially alleges that
he is not a citizen of the United States, but rather a Moorish sovereign citizen.
Courts routinely, summarily, and firmly reject sovereign citizen theories as
“frivolous.” United States v. Sterling, 738 F.3d 228, 233 (11th Cir. 2013) (citing United
States v. Benabe, 654 F.3d 753, 761 (7th Cir. 2011)) (“[Sovereign citizen] theories
should be rejected summarily, however they are presented.”). The Court has
closely reviewed Humphrey’s allegations and concludes that they most certainly
fit the bill of sovereign citizen-type theories and fail to state a claim. In other
words, dismissal of this action would be warranted based on its legal insufficiency
and the frivolity inherent in all sovereign citizen theories even if Humphrey
brought this suit against a viable defendant, which he has not. For this reason, too,
the Court dismisses the case.

14

ECF 10, at 1.
7

IV.

Conclusion
The Government’s motion to dismiss [ECF 10] is GRANTED. This case is

DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to close this
case.

SO ORDERED this 27th day of March, 2024.

Steven D. Grimberg
United States District Judge

8