Eberhardt v. Braud et al
Filing
7
OPINION entered by Judge Sue E. Myerscough on 6/29/2016. Plaintiff's motion (d/e 4 ) to proceed in forma pauperis is DENIED and Plaintiff's Complaint is DISMISSED without prejudice. Plaintiff's Motion for Joinder (d/e 5 ) is DENIED AS MOOT. Plaintiff's requests for hearings on the motions (d/e 2 ) (d/e 5 ) are also DENIED. (SEE WRITTEN OPINION)(MAS, ilcd)
E-FILED
Wednesday, 29 June, 2016 04:17:46 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DON FRANK EBERHARDT,
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Plaintiff,
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v.
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RUDOLPH BRAUD, JR., JUDGE,
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And Co-Conspirators: LESLIE
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GRAVES, JUDGE; and APRIL
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TROEMPER, JUDGE, and others, )
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Defendants.
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No. 16-cv-3153
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on pro se Plaintiff Don Frank
Eberhardt’s Motion (d/e 4) to proceed in forma pauperis, Motion for
Hearing (d/e 2) on the motion to proceed in forma pauperis, and
Motion for Hearing and Motion for Joinder (d/e 5) seeking to
consolidate this lawsuit with Plaintiff’s lawsuit in Eberhardt v.
Braud, Case No. 16-cv-3080. The Court finds that no hearing is
necessary, and Petitioner’s requests for a hearing are DENIED.
Because Plaintiff’s Complaint fails to state a claim, the Motion
seeking to proceed in forma pauperis is DENIED and the motion to
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consolidate this case with Case No. 16-cv-3080 is DENIED AS
MOOT.
I. BACKGROUND
On June 10, 2016, Plaintiff filed a three-count Complaint
against Defendants Rudolph Braud, Jr., a Sangamon County,
Illinois associate judge; and Leslie Graves and April Troemper, both
Sangamon County, Illinois circuit judges. Plaintiff alleges that
Defendants violated Plaintiff’s rights in a state court dissolution of
marriage case.1
According to Plaintiff, Plaintiff’s former wife, Aura Monica
Eberhardt, was still legally married to another man when she
married Plaintiff. Therefore, according to Plaintiff, no valid marriage
took place and Aura was an illegal alien. Nonetheless, Judge Braud
entered a dissolution of marriage and forced Plaintiff to sign a real
estate sales agreement under threats of immediate imprisonment
and “horrendous daily fines.” Compl. at 6 (d/e 1). Plaintiff alleges
A court may take judicial notice of documents in the public record. Olson v.
Champaign Cnty., Ill., 784 F.3d 1093, 1096 n.1 (7th Cir. 2015). A search of
the Sangamon County Circuit Clerk’s website shows that Plaintiff was involved
in a dissolution of marriage case, Case No. 2010-D-859. Judgment of
dissolution was entered October 18, 2011 by Judge Braud. An appeal was
filed, and the judgment was affirmed. Judge Graves subsequently entered
docket entries regarding ex-parte communications received from Petitioner.
Judge Troemper ruled on a Rule to Show Cause in February 2014.
1
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that Judge Braud’s orders are void because he did not have
jurisdiction to hear immigration fraud, citizenship fraud, and social
security fraud cases.
Plaintiff further alleges that the court reporter on August 5,
2011, the date Plaintiff testified in state court, was threatened or
forced to alter, destroy, or withhold part of Plaintiff’s testimony that
day. Plaintiff claims that Judge Braud’s legal abuse and abuse of
process was continued through the “Sorling Sorority Sinister
Sisterhood” and “secret court within the court” consisting of Judge
Graves and Judge Troemper, who also denied Plaintiff his civil
rights. Compl. at 6.
Plaintiff alleges that Defendants violated the civil Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962,
and two criminal statutes: 18 U.S.C. § 1346 (mail fraud, defining
“scheme or artifice to defraud” to include a scheme or artifice to
deprive another of the intangible right of honest services), and 18
U.S.C. § 1951 (interference with commerce by threats or violence).
Plaintiff seeks relief from all orders made in violation of law and
monetary compensation of at least $1 million and as much as $6
million.
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II. LEGAL STANDARD
When a plaintiff seeks leave to proceed in forma pauperis, his
complaint is subject to review by the district court. See 28 U.S.C.
§ 1915(e)(2); Estrada v. Reed, 346 F. App’x 87, 90 (7th Cir. Sept. 1.
2009) (unpublished disposition) (noting that the “district court must
screen the complaint of any plaintiff who would like to proceed in
forma pauperis”). Moreover, the district court shall dismiss the
case 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. 28 U.S.C. §1915(e)(2)(B)(i)-(iii); see also Rowe v. Shake,
196 F.3d 778, 783 (7th Cir. 1999) (noting that the “district court
may screen the complaint prior to service on the defendants, and
must dismiss the complaint if it fails to state a claim”) (citing 28
U.S.C. §1915(e)(2)(B)). When screening a complaint to determine
whether it states a claim, the court applies the same standard used
to evaluate dismissals under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See Arnett v Webster, 658 F.3d 742, 751 (7th Cir.
2011) (applying the Rule12(b)(6) standard when reviewing a
dismissal under §1915(e)(2)(B) for failure to state a claim).
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To state a claim for relief, a plaintiff need only provide a short
and plain statement of the claim showing he is entitled to relief and
giving the defendants fair notice of the claims. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A court
construes the complaint in the light most favorable to the plaintiff,
accepting all well-pleaded allegations as true and construing all
reasonable inferences in the plaintiff’s favor. Id. Pro se pleadings
are liberally construed. See Ambrose v. Roeckeman, 749 F.3d 615,
618 (7th Cir. 2014) (stating that “[t]he question for us is whether
the petition adequately presents the legal and factual basis for the
claim, even if the precise legal theory is inartfully articulated or
more difficult to discern.”).
A complaint must, however, set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). A plausible claim is one that alleges facts
from which a court can reasonably infer that the defendants are
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Merely reciting the elements of a cause of action or
supporting claims with conclusory statements is insufficient to
state a cause of action. Id.
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III. ANALYSIS
To state a claim for a RICO violation under § 1962(c)2, Plaintiff
must allege: “(1) conduct (2) of an enterprise (3) through a pattern
(4) of racketeering activity.” Gamboa v. Velez, 457 F.3d 703, 705
(7th Cir. 2008). To allege racketeering activity, Plaintiff must allege
that the Defendants violated one or more of the acts listed in
§ 1961(1). See Daniels v. Bursey, 313 F. Supp. 2d 790, 813 (N.D.
Ill. 2004); 18 U.S.C. 1961(1)(A). Section 1961(1)(F) defines
racketeering activity to include any act that is indictable under
Section 274 of the Immigration and Nationality Act (8 U.S.C.
1324(a)(1)(A)(iii)), which prohibits a person from knowingly or
recklessly concealing, harboring, or shielding from detection an
illegal alien in the United States. Plaintiff alleges Defendants
violated Section 274 of the Immigration and Nationality Act. See
Compl. at 1.
A pattern of racketeering activity is defined as at least two acts
of racketeering activity (also called “predicate acts”). 18 U.S.C.
“It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise’s affairs through a pattern of racketeering activity or collection
of unlawful debt.” 18 U.S.C. § 1962(c).
2
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§ 1961(5); Krakow Business Park v. Locke Lord, LLP, 135 F. Supp.
3d 770, 786-87 (N.D. Ill. 2015), appeal filed. Plaintiff must also
allege facts that show that Defendants’ pattern of racketeering
activity “amount[s] to or pose[s] a threat of continued criminal
activity.” Gamboa, 457 F.3d at 705 (quoting Corley v. Rosewood
Care Ctr., Inc. of Peoria, 388 F.3d 990, 1002 (7th Cir. 2004)).
Allegations of isolated instances of criminal behavior that do not
pose a threat of future harm are not sufficient to allege a pattern of
racketeering activity. Gamboa, 457 F.3d at 705.
In this case, Plaintiff does not allege a pattern of racketeering
activity. As evidence of a second act of racketeering activity,
Plaintiff alleges a “hypothetical” witness would “hypothetically”
testify, if given absolute immunity, that he became wealthy through
the promise of guaranteed verdicts in his favor. See Compl. at 2
(d/e 1). However, these allegations are conclusory at best, and
insufficient to state a claim. Iqbal, 556 U.S. at 678 (“mere
conclusory statements” are insufficient to state a claim”). Moreover,
the facts do not support a pattern of racketeering activity involving
concealing, harboring, or shielding from detection an illegal alien in
the United States. See Corley, 388 F.3d at 1002 (noting that the
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term “pattern” requires that the predicates be related and that they
amount to and pose a threat of continued criminal activity)
(quotations and citations omitted). Finally, Plaintiff does not allege
facts that plausibly show any threat of future harm from ongoing
racketeering activity. Therefore, Count 1 fails to state a claim.
Counts 2 and 3 must also be dismissed. Plaintiff attempts to
bring a private right of action under 18 U.S.C. § 1346 and 18 U.S.C.
§ 1951, but those criminal statutes do not contain an express or
implied private right of action. See Stanard v. Nygren, 658 F.3d
792, 794 (7th Cir. 2011) (noting there is no private right of action
under the Hobbs Act); Bajorat v. Columbia-Breckenridge Dev.
Corp., 944 F. Supp. 1371, 1377-78 (N.D. Ill. 1996) (citing cases and
finding that the Hobbs Act, 18 U.S.C. § 1951, does not carry an
implied private right of action); Hayes v. Shelby Cnty. Tr., 971
F.Supp.2d 717, 726 (W.D. Tenn. 2013) (adopting report and
recommendation finding that 18 U.S.C. § 1346 did not create a
private right of action).
IV. CONCLUSION
For the reasons stated, Plaintiff’s Complaint fails to state a
claim on which relief can be granted. Therefore, Plaintiff’s Motion
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(d/e 4) to proceed in forma pauperis is DENIED and Plaintiff’s
Complaint is DISMISSED without prejudice. Plaintiff’s Motion for
Joinder (d/e 5) is DENIED AS MOOT. Plaintiff’s requests for
hearings on the motions (d/e 2) (d/e 5) are also DENIED.
ENTER: June 29, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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