Moore v. Council
Filing
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MEMORANDUM OPINION AND ORDER; (1) Plaintiff Robert Moores 1 Motion for Leave to Proceed in Forma Pauperis is GRANTED, and Plaintiff may proceed without payment of costs or fees; (2) The tendered 1 Complaint shall be made a permanent part of the record herein;(3) Plaintiff Robert Moores 1 Complaint is DISMISSED WITHOUT PREJUDICE;(4) This action is DISMISSED and STRICKEN from the Courts active docket;and (5) A corresponding Judgment will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 6/27/2018. (LST)cc: COR, Robert Moore via U.S. Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 18-105-DLB
ROBERT MOORE
V.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
JOSEPH COUNCIL
DEFENDANT
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This matter is before the Court upon Plaintiff Robert Moore’s Motion for Leave to
Proceed in Forma Pauperis, as well as an attached Complaint. (Docs. # 1 and 1-1). For
the reasons that follow, Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (Doc.
# 1) is hereby granted, but Plaintiff’s Complaint (Doc. # 1-1) is dismissed without
prejudice.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2018, Plaintiff Robert Moore initiated this action in the United States
District Court for the Southern District of Ohio against Defendant Joseph Council. (Doc.
# 1). In doing so, the Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis (Doc.
# 1), and tendered a Complaint. (Doc. # 1-1). Thereafter, the Southern District of Ohio
transferred this action to the United States District Court for the Eastern District of
Kentucky. (Docs. # 2 and 3).
A review of the Plaintiff’s Complaint reveals a litany of allegations. The particular
claims Plaintiff wishes to bring, however, are difficult to discern given that much of the
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Complaint is mere gobbledygook. From the erratic factual account, the numerous offers
of testamentary proof, and various mentions of constitutional violations, the Court has
attempted to make sense of Plaintiff’s Complaint and identify the relevant legal issues.
As best the Court can tell, it appears that the Plaintiff, Defendant, and various other
parties have found themselves involved in a chaotic and conflict-ridden interpersonal
situation. Evidently, the Plaintiff’s ex-wife1—Alison Moore—is now involved in a romantic
relationship with the Defendant. (Doc. # 1-1 at 6, 7). The primary reason for Plaintiff’s
filing of the instant Complaint appears to be an alleged incident of physical violence that
occurred on or about June 2, 2018:
Joseph Council-defendant named assaulted Plaintiff Robert Moore on June
02, 2018 Intentionally, willingly and maliciously with his hands namely a
punch to Plaintiffs [sic] ribs or stomach and thereby causing him injury to
his body, namely a lot of pain and suffering and brusing [sic] and hurt [his]
body flesh or person.
Id. at 3. The Plaintiff further claims that “[a]ll of this was done to plaintiff, by defendant,
without any fault of plaintiff while plaintiff was standing in a public street talking to his son.”
Id. In addition to physical pain and suffering, the Plaintiff alleges that the event caused
“mental anguish to [his] mind.” Id. The Complaint alleges that the physical pain from the
June 2, 2018 incident lasted “almost a week.” Id. at 6.
The conflict—and the allegations—continue past June 2, 2018. Specifically, the
Plaintiff alleges that approximately two weeks after the June 2, 2018 incident, the
Defendant “came to [Plaintiff’s] residence in the cover of night and slashed [his] girlfriend
Rouzin Saed’s tires on her vehicle” and thereby “deprived [Plaintiff] of [his] rights to live
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Although the Plaintiff refers to Alison Moore as his ex-wife (Doc. # 1-1 at 6), the Plaintiff’s Motion
for Leave to Proceed in Forma Pauperis, indicates that the Plaintiff and Alison Moore are only separated.
(Doc. # 1 at 2).
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free of fear, rights to travel using a vehicle and [his] constitutional rights to not be harmed
in [his] body or mind.” Id. at 3. On this same night, the Plaintiff alleges that the Defendant
“broke into [his] car and took around 250 cash and [his] pain medication.” Id. at 4.
Afterwards, the Plaintiff claims that the Defendant’s “blood relative” provided a get-away
car so that the Defendant could flee the scene. Id. at 5.
In addition to these specific incidents, the Plaintiff accuses the Defendant and
Alison Moore—his ex-wife and apparently the custodian of his children—of illicit drug use.
Id. at 6. Plaintiff claims that the Defendant has “manipulate[ed] and influence[d]” Alison
Moore to “withhold” Plaintiff’s children from him. Id. at 4. These actions, the Plaintiff
claims, violate his “constitutional rights to own … and possess [his] relationship as a
parent over [his] two kids” and constitute “interference” with his “rights to parent [his]
children” under the United States Constitution. Id. The Plaintiff further claims that the
Defendant has interfered with and violated his constitutional rights for eight months.2 Id.
As a result of the aforementioned events, the Plaintiff claims that he is “missing
sleep,” “scared for [his] life,” and “worr[ies] constantly that [the Defendant] will come and
shoot [him] dead” because the Plaintiff saw the Defendant “with a knife while he slashed”
the “tires of [Plaintiff’s] girlfriend’s vehicles.” Id. at 4. The Plaintiff also claims to be
aggrieved by the Defendant’s and Alison Moore’s actions with respect to his children:
For the last 8 months when I have tried to see my kids, Joey Council has
interfered with my relationship with them and greatly influenced their mother
to not let me see my own blood children. He has said many times to me
that I am not welcome around them. I am not wanted anymore by them.
He will raise them as their own dad.
Id. at 7. In addition to contesting the Defendant’s and Alison Moore’s fitness to parent,
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At another place in the Complaint, Plaintiff alleges that he had not seen his son in five months.
(Doc. # 1-1 at 6).
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the Plaintiff claims to “have texts where Alison and Joey have said to stay away from [his]
kids and the kids don’t love [him] at all and don’t like [him].” Id. Finally, the Plaintiff asserts
that “Alison Moore and Joey are playing head games and house with [his] children’s lives”
and alleges that he is his “kids [sic] father” and that the Defendant is “unconstitutionally
interfering with [his] children’s lives and [his] relationship with them.” Id. at 7.
The Plaintiff seeks various forms of relief throughout his Complaint. First, Plaintiff
asks the Court to “issue a restraining order” against the Defendant, “give [Plaintiff] a new
name so” the Defendant cannot “find [Plaintiff] and kill [him],” and for a “jury trial and all
else.” (Doc. # 1-1 at 5). Later in the Complaint, Plaintiff again demands a jury trial and a
“restraining order” against the Defendant preventing him from coming near the Plaintiff
and his “minor children,” as well as “Rouzin Saed or her kids,” who are not parties to this
action. Id. at 8. Plaintiff also makes various requests regarding “freezing” the Defendant’s
assets, which appear to be in anticipation of a money judgment in this action:
Prevent Joey Council Defendant from transferring his real estate thats [sic]
titled in his name for avoidance/losing these things or them if Plaintiff wins
this suit and he persues [sic] attachment from judgement [sic]. Please issue
an order Freezing the transfer or sale of property, houses, cars, 4 wheelers,
boats, etc owned by Defendant unless he motions the Court beforehand
with just cause, and more specifically the property located [sic] Crestview
Lakes Villa mobile home park 1094 Amber drive Florence, KY 41042 that is
a double wide mobile home
Id. Finally, Plaintiff seeks compensatory damages in the amount of $5,000,000 and
punitive damages in the amount of $20,000,000, which he requests that the Court make
“not dischargeable in bankruptcy at all.” Id.
II.
ANALYSIS
A.
Motion for Leave to Proceed in Forma Pauperis
Applications to proceed in forma pauperis are governed by 28 U.S.C. § 1915. This
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statute “allows a litigant to commence a civil or criminal action in federal court ... by filing
in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit.”
Neitzke v. Williams, 490 U.S. 319, 324 (1989). Pauper status should be granted when
an applicant’s affidavit shows that he cannot pay the costs of the lawsuit and still provide
“himself and dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948).
In support of his Motion, Plaintiff submitted a sworn affidavit detailing his financial
situation. (Doc. # 1). Because the Plaintiff is unemployed, claims he is has no cash and
no money in a bank account, and lists his sole asset as a vehicle worth approximately
$1,000, the Court finds that the Plaintiff cannot pay the costs of the lawsuit and still provide
himself and his dependents with the necessities of life, the Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis (Doc. # 1) is granted. The tendered Complaint (Doc. # 1-1)
shall be made a permanent part of the record herein, and Plaintiff may proceed without
payment of costs or fees.
Having granted the Plaintiff’s Motion for Leave to Proceed in Forma Pauperis, the
Court must now undertake the initial screening required by 28 U.S.C. § 1915(e).
B.
Initial Screening under 28 U.S.C. § 1915(e)
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking
to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31
(1992). In doing so, however, “Congress recognized that ‘a litigant whose filing fees and
court costs are assumed by the public, unlike a paying litigant, lacks an economic
incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting
Neitzke, 490 U.S. at 324). To address this concern, Congress included subsection (e),
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which requires sua sponte dismissal of an action upon certain determinations. 28 U.S.C.
§ 1915(e)(2)(B).
Because Plaintiff is proceeding in forma pauperis, the Court must review his
Complaint pursuant to 28 U.S.C. § 1915(e). Benson v. O’Brian, 179 F.3d 1014, 1016 (6th
Cir. 1999). Under § 1915(e), the court is required to screen in forma pauperis complaints
and dismiss any complaint, or any portion thereof, if the action is: frivolous or malicious,
fails to state a claim upon 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); see also Hill v.
Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010).
“‘[H]owever inartfully pleaded,’ allegations in a pro se complaint are held to ‘less
stringent standards than formal pleadings drafted by lawyers.’” Franklin v. Rose, 765
F.2d 82, 85 (6th Cir. 1985) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
“Although liberal construction requires active interpretation of the filings of a pro se litigant
… it has limits.” Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001) (citing Franklin,
765 F.2d at 85). “Liberal construction does not require a court to conjure allegations on
a litigant’s behalf.” Id. (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Nor are
pro se litigants exempt from the requirements of the Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Brown v. Matauszak, 415 F. App’x
608, 613 (6th Cir. 2011).
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, (2) a short and
plain statement of the claim showing that the plaintiff is entitled to relief, and (3) a demand
for the relief sought. Fed. R. Civ. P. 8(a). After conducting the initial screening pursuant
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to 28 U.S.C. § 1915(e)(2), the Court finds that Plaintiff’s Complaint does not satisfy
Federal Rule of Civil Procedure Rule 8 and cannot survive screening under § 1915(e)(2).
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). “[S]ubject-matter jurisdiction, because it involves
a court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton,
535 U.S. 625, 630 (2002). Therefore, this Court has “an independent obligation to
determine whether subject-matter jurisdiction exists, even in the absence of a challenge
from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006).
“The basic statutory grants of federal-court subject-matter jurisdiction are
contained in 28 U.S.C. §§ 1331 and 1332.” Id. These provisions provide for federalquestion jurisdiction and diversity-of-citizenship jurisdiction, respectively. 28 U.S.C. §§
1331; 1332. “A plaintiff properly invokes § 1331 jurisdiction when [he] pleads a colorable
claim ‘arising under’ the Constitution or laws of the United States.” Arbaugh, 546 U.S. at
513 (citing Bell v. Hood, 327 U.S. 678, 681-85 (1946)). A plaintiff invokes § 1332
jurisdiction, on the other hand, when he “presents a claim between parties of diverse
citizenship that exceeds the required jurisdictional amount, currently $75,000.” Id.
The Plaintiff has the burden of establishing subject-matter jurisdiction. McNutt v.
Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Wisecarver v. Moore,
489 F.3d 747, 749 (6th Cir. 2007). To satisfy this burden, the Plaintiff’s Complaint must
allege “the facts essential to show jurisdiction.” McNutt, 298 U.S. at 189; see also
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). If “a federal court concludes
that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.”
Arbaugh, 546 U.S. at 514; see also Carlock v. Williams, 182 F.3d 916, at *2 (6th Cir.
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1999) (table) (holding that an action that is not supported by subject-matter jurisdiction is
frivolous under § 1915(e)(2)(B)(i)). For that reason, dismissal is appropriate in this case.
The Plaintiff has failed to adequately plead facts which support the exercise of jurisdiction
and therefore Plaintiff’s Complaint fails to survive screening under § 1915(e).
On the face of his Complaint, despite the broad allegations therein, the Plaintiff
claims that his suit against the Defendant is one for “intentional tort” and claims that the
Court has diversity-of-citizenship jurisdiction under § 1332. (Doc. # 1-1 at 1). That
Plaintiff says so, however, does not make it so.
Again, for a federal court to have diversity-of-citizenship jurisdiction pursuant to §
1332, there must be complete diversity—which means that each plaintiff must be a citizen
of a different state than each defendant—and the amount in controversy must exceed
$75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). Here, complete diversity is
not a problem. Plaintiff is a citizen of Ohio and Defendant is a citizen of Kentucky. The
Plaintiff, however, has failed to adequately plead facts upon which the Court could rely to
conclude that the amount in controversy exceeds $75,000. Although Plaintiff’s Complaint
seeks compensatory damages in the amount of $5,000,000 and punitive damages in the
amount of $20,000,000 (Doc. # 1-1 at 8), his allegations fail to support such a request
and suggest that his claim for damages is merely delusional, rather than a request made
in good faith. Neitzke, 490 U.S. at 328. The most specific allegations of damages the
Plaintiff references are: the physical pain and suffering that resulted from the Defendant’s
alleged punch, which lasted “almost a week”; the corresponding “mental anguish”; the
allegedly stolen $250; and the allegedly stolen medication. Id. at 4, 6.
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Even construed liberally, Plaintiff’s allegations fall far short of the requisite $75,000
amount in controversy. See McCune v. JPay, Inc., No. 2:17-cv-670-CMV-JLG, 2017 WL
3437660, at *3 (S.D. Ohio Aug, 10, 2017) (holding that defective-products action where
plaintiff sought $500,000 in damages did not sufficiently plead diversity jurisdiction and
did not survive screening under § 1915(e)); see also Carter v. Night Mgmt. & Gap Prot.,
No. 2:12-cv-780-EAPD-EAS, 2012 WL 4757384, at *3 (S.D. Ohio Sept. 7, 2012)
(concluding that the plaintiff failed to sufficiently plead diversity jurisdiction where “her
allegations fail[ed] to support her request for millions of dollars”); Tiger v. Pynkala, No.
14-cv-1212-JDT, 2014 WL 5502405, at *14 (W.D. Tenn. Oct. 30, 2014) (same).
Accordingly, the Plaintiff has failed to satisfy the amount-in-controversy requirement and
the allegations in his Complaint are insufficient to support diversity-of-citizenship
jurisdiction.
Nor can Plaintiff rely on federal-question jurisdiction. Federal-question jurisdiction
is invoked when a plaintiff pleads a claim “arising under” federal law or the United States
Constitution. 28 U.S.C. § 1331. Although a review of Plaintiff’s Complaint reveals
numerous allegations regarding the infringement and violation of his constitutional rights
(Doc. # 1-1 at 3-4), the Complaint fails to allege a violation of federal law or the
Constitution. To establish a right to relief under 42 U.S.C. § 1983, the plaintiff must plead
and prove two essential elements: (1) the violation of a right secured by the Constitution
or laws of the United States and (2) that the alleged violation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Miller v. Sanilac
Cty., 606 F.3d 240, 247 *6th Cir. 2010).
Here, the second element presents an
insurmountable hurdle for Plaintiff because the Defendant is not an official acting under
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color of state law. Instead, the Defendant is merely a private individual who is now in a
relationship with the Plaintiff’s ex-wife. Thus, even if the Complaint attempted to invoke
federal-question jurisdiction, the Complaint would fail to state a claim upon which relief
can be granted, and therefore, would not survive screening under § 1915(e).
Furthermore, there is an additional jurisdictional issue that warrants attention.
Plaintiff’s Complaint makes much of the Defendant’s alleged interference with his childcustody rights and claims that his ex-wife—who is now in a romantic relationship with the
Defendant—has withheld Plaintiff’s children from him. (Doc. # 1-1 at 3-4, 7). These
allegations and Plaintiff’s request for a restraining order against the Defendant on behalf
of his minor children, who are apparently in the custody of Plaintiff’s ex-wife, casts
additional doubt on the Court’s jurisdiction over this matter.
Even assuming the parties are completely diverse and the amount-in-controversy
requirement is satisfied, diversity jurisdiction does not exist for domestic-relations cases
involving divorce, alimony, or child-custody matters. Ankenbrandt v. Richards, 504 U.S.
689 (1992). Although the domestic-relations exception does not apply to “every case
touching and concerning the issuance of a divorce, the award of alimony, or a childcustody decree,” the Sixth Circuit has “clarified that the domestic-relations exception
deprives federal courts of diversity jurisdiction if the plaintiff seeks to modify or interpret
the terms of an existing divorce, alimony, or child-custody decree.” Chevalier v. Estate
of Barnhart, 803 F.3d 789, 795 (6th Cir. 2015). Because Plaintiff’s Complaint seems to
seek modification or enforcement of a child-custody decree—remedies which are
“typically attendant to the dissolution of a marriage”—this action appears to “entail
continuing judicial supervision of a volatile family situation, and federal courts are poorly
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equipped to handle that task.” Id. at 797.
Put simply, the Plaintiff’s Complaint, which fails to provide adequate grounds for
federal-court jurisdiction, must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) because
it is frivolous and fails to state a claim upon which relief may be granted. That conclusion,
however, has no bearing on whether Plaintiff may appropriately pursue his claims in state
court, rather than federal court.
III.
CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)
Plaintiff Robert Moore’s Motion for Leave to Proceed in Forma Pauperis
(Doc. # 1) is GRANTED, and Plaintiff may proceed without payment of costs or fees;
(2)
The tendered Complaint (Doc. # 1-1) shall be made a permanent part of the
record herein;
(3)
Plaintiff Robert Moore’s Complaint (Doc. # 1-1) is DISMISSED WITHOUT
PREJUDICE;
(4)
This action is DISMISSED and STRICKEN from the Court’s active docket;
(5)
A corresponding Judgment will be entered contemporaneously herewith.
and
This 27th day of June, 2018.
K:\DATA\ORDERS\Cov18\18-105 MOO pro se initial screening.docx
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