Nolan-Bey v. Wickham Glass, Inc. et al

Filing 20

MEMORANDUM AND ORDER granting 12 Motion to Dismiss for Failure to State a Claim; denying 14 Motion for Summary Judgment. Signed by District Judge J. Thomas Marten on 11/29/2017. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARQUES NOLAN-BEY,
Plaintiff,
v.

Case No. 17-1196-JTM

WICKHAM GLASS, INC. ;
GREG WICKHAM; and
JEFF WOLFE,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Marques Nolan-Bey1 filed a pro se complaint alleging that he was
discriminated against in connection with an application for employment with
defendant Wickham Glass, Inc. 2 (Dkt. 1). The matter is now before the court on the
defendants’ motion to dismiss the complaint (Dkt. 12) and on plaintiff’s motion for
summary judgment (Dkt. 14).
I. Summary of Complaint
The complaint is somewhat difficult to decipher, as it includes references to
irrelevant items such as peace treaties between the United States and Morocco and the
Articles of Confederation.3 Aside from these matters, plaintiff alleges that he is an

The complaint indicates that plaintiff’s name is “Marques Nolan-Bey, Ex. Rel. Marques V. Nolan II.”
Dkt. 1 at 1.
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The defendants’ response indicates the company’s name is actually Wickham Industries, Inc. (Dkt. 13 at
1).

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Plaintiff included similar allegations in Galt-Ventures, Inc. v. Nolan, No. 17-1205-JTM and No. 17-1206JTM, a pair of debt-dispute cases the court recently dismissed. In disputing the debts, Nolan-Bey alleged
that an order of a Sedgwick County District Judge directed to “MARQUES V. NOLAN II” was a
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“Aboriginal Indigenous Moorish-American” and is “a descendant of Moroccans and
born in America, with the blood of the ancient Moabites from the Land of Moab, who
received permission from the Pharoahs of Egypt to settle and inhabit North-West
Africa/North Gate.” (Dkt. 1 at 2). The Moors are allegedly “the founders and are the
true possessors of the present Moroccan Empire; with our Canaanite, Hittite and
Amorite brethren, who sojourned from the land of Canaan, seeking new homes.” (Id.).
Plaintiff alleges he was “working a temporary assignment at Wickham glass
through Elite Staffing,” apparently from August 2015 to February 2016, and that he and
plant manager Jeff Wolfe “had a verbal contract that he [Wolfe] was going to hire”
plaintiff. Wolfe allegedly moved plaintiff to the custodial department, where he was
expected to go through training, but plaintiff was “deprived of his training and stripped
of his equal rights as an employee to be properly trained by a qualified trainer.” (Id.).
Plaintiff was allegedly “discriminated against because all other co-workers received
employee hand books and proper training,” but the day custodian couldn’t properly
train him due to overtime restrictions, so the trainer “just verbally told [plaintiff] what
needs to be done and where the equipment is located.” This failure to train allegedly
meant plaintiff “couldn’t properly do his required job therefore [plaintiff] [lost] his job
before [the] application was turned in.” (Id.).

“misnomer and CORPORATE – NAME … [and] is clearly (an artificial - person / entity); is not me, the
Natural Person; is a deliberate grammatical error, intended for injury to me; and is clearly not of
consanguine relationship to me or my nationality, in any form, truth, or manner; nor to my Moorish
Family Bloodline.” (No. 17-1205, Dkt. 1 at 4-5). Another complaint concerning a debt was dismissed by
Judge Melgren in Nolan-Bey v. Hansen, No. 17-1214. The complaint in that case appears to be a partial
copy of the complaint in the instant case, and in fact contains a reference to Jeff Wolfe (No. 17-1214-EFM,
Dkt. 1 at 3), although Wolfe had no apparent relation to that case.

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Plaintiff demands that “if any unconstitutional charges be found,” that they “be
placed upon the defendants,” and alleges that Wickham Glass violated 18 U.S.C. § 241
and 8 U.S.C. § 1503. Plaintiff also seeks compensatory and punitive damages against
Greg Wickham, president of Wickham Glass, and against Wolfe. (Dkt. 1 at 7-8).
II. Standards Governing Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain ‘enough facts to state
a claim to relief that is plausible on its face.’ ” The Estate of Lockett by & through Lockett v.
Fallin, 841 F.3d 1098, 1106–07 (10th Cir. 2016), cert. denied sub nom. Lockett v. Fallin, 137 S.
Ct. 2298 (2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible if it pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In reviewing a motion to dismiss, the court must accept as true all
well-pleaded allegations and view those allegations in the light most favorable to the
non-moving party. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
The plausibility standard “asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Iqbal, 556 U.S. at 678. Mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of action” are insufficient. Twombly, 550
U.S. at 555. Moreover, “[t]he tenet that a court must accept as true all of the allegations
contained a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

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III. Discussion
Defendants correctly point out that plaintiff fails to state a valid claim for relief
under any of the federal laws specifically mentioned in the complaint. For example, 18
U.S.C. § 241 is a criminal statute that does not permit a private cause of action. See Henry
v. Albuquerque Police Dep’t, 49 Fed.App’x 272, 273, 2002 WL 31379859 (10th Cir. 2012)
(“these criminal statutes [§§ 241 and 242], like other such statutes, do not provide for a
private civil cause of action”). Section 1503 of Title 8, U.S. Code, also cited in the
complaint, applies where a “department or independent agency” of the United States
denies a person certain benefits “upon the ground that he is not a national of the United
States.” The defendants are not alleged to be agencies of the United States and have not
denied plaintiff benefits on the grounds that he is not a U.S. national. The statute thus
has no application. Neither do plaintiff’s allegations concerning the Articles of
Confederation or a peace treaty between the United States and Morocco have anything
to do with a claim arising out of plaintiff’s alleged employment application with
Wickham. Cf. El Ameen Bey v. Stumpf, 825 F.Supp.2d 537, 558 (D.N.J.2011) (“[A] litigant’s
reliance on any Barbary Treaty, including on the Treaty with Morocco, for the purposes
of a civil suit raising claims based on the events that occurred within what is the United
States’ geographical territory is facially frivolous.”).
The complaint might be liberally construed to assert a claim for race or national
origin discrimination under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et
seq. But defendants contend plaintiff has failed to exhaust administrative remedies on
any Title VII claim. Plaintiff does not respond to that allegation and the record fails to
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show that plaintiff has pursued any administrative remedies. Accordingly, the court
determines that defendants are entitled to dismissal of any Title VII claim. See Aramburu
v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997) (“A plaintiff must first exhaust his
administrative remedies before bringing suit under Title VII”).
Finally, the complaint fails to state a claim for relief under any identifiable theory
of state law such as breach of contract. Plaintiff’s allegations that he and Wolfe had a
“verbal contract that [Wolfe] was going to hire him” are conclusory and fail to plausibly
show the existence of a legally enforceable agreement. Moreover, the complaint
indicates that plaintiff did not submit an application for the custodial position, as it
alleges that plaintiff “loss [sic] his job before [the] application was turned in.” (Dkt. 1 at
3). Under the alleged facts, plaintiff has failed to state a claim upon which relief can be
granted.
IT IS THEREFORE ORDERED this 29th day of November, 2017, that plaintiff’s
Motion for Summary Judgment (Dkt. 14) is DENIED, and that defendants’ Motion to
Dismiss For Failure to State a Claim (Dkt. 12) is GRANTED.

___s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE

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