Wesley v. UK Federal Credit Union

Filing 7

OPINION & ORDER: IT IS ORDERED THAT this action is DISMISSED, sua sponte and this matter is STRICKEN from active docket; this Court places Misty Lynn Wesley on notice that any future filing in state court alleging violations under federal law will result in sanctions; The Court certifies that any appeal would not be taken in good faith. Signed by Judge Karl S. Forester on 9/6/2011.(GLD)cc: COR, Misty Lynn Wesley, pro se

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 5:11-CV-263-KSF
PLAINTIFF
MISTY LYNN WESLEY
vs.

OPINION AND ORDER

UK FEDERAL CREDIT UNION

DEFENDANT
********

This matter is before the Court for initial screening pursuant to Apple v. Glenn, 183 F.3d
477, 479 (6th Cir. 1999) and Wagenknecht v. United States, 533 F.3d 412, 417 (6th Cir. 2008).
Generally, a district court may not dismiss a complaint sua sponte where the filing fee has been
paid unless the plaintiff is given an opportunity to amend the complaint; however, there is an
important exception to this general rule. “[A] district court may, at any time, sua sponte dismiss a
complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure when the allegations of a complaint are totally implausible, attenuated,
unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Wagenknecht, 533 F.3d
at 417 (quoting Apple, 183 F.3d at 479).
Plaintiff Misty Lynn Wesley has a documented history of filing abusive litigation in this Court.
Following the filing of seven frivolous lawsuits,1 Misty Wesley was permanently enjoined from “(a)
filing any new civil action and (b) filing any additional pleadings in any of the seven cases which she
has already filed in this Court, unless she first obtains a certification from a United States
Magistrate Judge of the Eastern District of Kentucky that the claims asserted therein are not
1

The seven cases were: Wesley v. Harrison Memorial Hospital, et al., 03-cv-499-KSF;
Wesley v. Ephriam McDowell Regional Medical Center, et al., 03-cv-500-JMH; Wesley v.
Medical Staffing Network, et al., No. 04 -cv-52; Wesley v. Columbia Hospital Georgetown, et
al., 04-cv-70-JBC; Wesley v. St Luke West, 04-cv-123-WOB; and Wesley v. Good Samaritan
Hospital, 04-cv-263-JMH; Wesley v. McClanahan, 04-cv-535-KSF.

frivolous and that the filing(s) are not being submitted for any improper purposes.” General Order
07-6, United States District Court, Eastern District of Kentucky.
Plaintiff did not violate the injunction in the present case, as she filed her action in state
court. She craftily included claims based on federal law, however, so the Defendant promptly
removed the case to this Court. Accordingly, the Court is faced again with frivolous claims by Misty
Lynn Wesley. This Court is not required to waste its scarce resources on frivolous claims,
however, particularly when the Plaintiff has a history of abusing the litigation process. Under the
Federal Rules of Civil Procedure, the Court must dismiss an action if it “determines at any time that
it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3). The dismissal should issue the
moment the Court determines that subject-matter jurisdiction is lacking.
Plaintiff’s complaint against the University of Kentucky (“UK”) Federal Credit Union alleges
that when she was wrongfully discharged from the UK Medical Center in February 2003, her
checking account with the Credit Union had a negative balance. Complaint ¶ 3. She claims she
went to an ATM machine and attempted to deposit cash in excess of $700 in an envelope. She
alleges the ATM machine took her bank card and kept the envelope full of cash. Id. at ¶ 4. There
are allegations that make little sense about a female employee of an unnamed employer lying to
Plaintiff to cause her to lose an action filed in state district court, but she won anyway. Id. at ¶¶ 6-7.
Then she alleges the Credit Union hired a law firm that apparently pursued the funds owing as a
result of the negative balance, and the Credit Union refuses to take the negative balance off of her
credit reports. Id. at ¶ 8. She claims the Credit Union committed wire fraud by taking money from
her savings account to cover the negative balance. Id. Finally, she alleges that the monthly billing
from the Credit Union provides proof of “Defamation, Slander and Libel acts as well as a RICO
statute for conspiracy, mail and wire fraud for the Federal Court.” Id. at ¶ 9. Plaintiff demands
$500 million “for the Tort Claim” and permanent injunctive relief to seal her credit reports and to bar
the Credit Union from mailing any more bills to her.
2

The Credit Union answered and counterclaimed demanding payment for the principal sum
of $499.77 resulting from her deficiency balance. [DE 3]. The Credit Union noted that Plaintiff had
a history of overdrafts and attached account statements reflecting those overdrafts. Id. Wesley
answered as follows:2
A.

The complaint fails to state a counterclaim upon which relief can be granted
based upon the fact the legal discovery has to be issued regarding how to
catch the Defendant related to Computer forensics and with the first letter
issued by Gess, Mattingly & Atchison to the Plaintiff, the Defendant should
have sued in the Federal Court then, and this was in the year of 2008.

B.

UK Federal Credit Union claims against the Plaintiff are barred in whole or
in part by the Breach of Contract that the Credit Union has been paid
already when the bank took the Plaintiff’s debit card and her deposit stating
that the account was frozen and to call the bank regarding the matter. The
deposit covered the balance and the negative overdraft was covered and
the account would have had a positive balance and based upon the
Conspiracy Against Rights under 1985(3) and Same; Action to neglect to
prevent under 1986(6) based upon their employees not correcting the
overdraft and conspiring with UK Medical Center assigned to Judge Jennifer
Coffman based upon UK calling the credit union and inquiring about the
Plaintiff’s balance and requesting that it not be corrected at this particular
stage with case files against them pending with the Federal and Circuit
Courts.

C.

The Plaintiff, Misty Lynn Wesley, openly states that with J. B. Haggin
Memorial calling the UK Federal Credit Union and asking why her deposit
for payroll could not go through and their reply was that the account was
frozen, after the deposit at the ATM machine, flagged the Plaintiff even
further. After hiring F & B Legal out of Florida to clean up the Plaintiff’s
credit file and the attorney telling the Plaintiff that there were several things
on the Plaintiff’s credit file that should not even be on there and with the
Defendant fighting tooth and nail about this credit issue, the flags the
Plaintiff even further.

D.

The Plaintiff will attempt to amend her complaint for additional claims and
remedies under the Conspiracy Against Rights, Equal Rights under the Law,
The Federal Tort Claims Act and Same; Action to Neglect to Prevent, The
Fair Credit Billing Act, The Fair Debt and Collection Act and the RICO
statute described for mail and wire fraud and conspiracy, as well as The Fair
Credit Reporting Act violations pleadings will be requested after the rulings
of the Federal Judge assigned to the case filed. This is so not to agitate the

2

The text, capitalization and grammatical errors are quoted as written.
3

Federal Judge assigned until after the initial ruling so that proper permission
can be granted.
E.

The Plaintiff is respectfully requesting that the Federal Judge allow both Federal
and Circuit Court the jurisdiction over this case with the Plaintiff showing a proof
structure of both Federal and State Tort Claims for her injury with the credit file that
can be subpoenaed for their reviews.

[DE 6]. In her prayer for relief, Plaintiff states: “That she recover judgment against the Plaintiff,
Misty Lynn Wesley, in the sum of 500 million plus all additional claims and remedies amended in
her complaint with this Federal Court after a jury trial.” Id. at 4.
A pro se complaint is held to a less stringent standard than a formal pleading drafted by
lawyers. Haines v. Kerner, 404 U.S. 519 (1972). Nonetheless, it is evident that Wesley is making
claims or arguments relating to her prior lawsuits in this Court (“UK Medical Center,” “Judge
Jennifer Coffman”), despite being permanently enjoined from any further filings in those actions.
It is also evident that most of Ms. Wesley’s demands or claims make no sense, such as the prayer
that she recover $500 million from herself. It is the opinion of this Court that the allegations of the
complaint are totally implausible and frivolous. Her history of filing lawsuits in bad faith supports
this conclusion.
In addition to the claims being implausible and frivolous, they also are no longer open to
discussion. Plaintiff alleges the events in question occurred in February 2003 or soon thereafter.
[DE 1-1, ¶¶ 3-4]. Her bank records show the last transaction was July 14, 2004. Even giving her
the benefit of the latter date, her claims under the Fair Credit Reporting Act and RICO would be
barred by the applicable statutes of limitations.
The limitations period for a claim under the Fair Credit Reporting Act is the earlier of two
years after the discovery of the violation or five years after the date of the violation. 15 U.S.C. §
1681p. Using 2004 as the date of the violation, the limitations period would have run in 2009.
Plaintiff’s complaint was not filed until 2011.

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The RICO statute does not contain a statute of limitations provision, but the Supreme Court
has held that civil RICO actions are subject to a four-year statute of limitations. Agency Holding
Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 156 (1987). With respect to accrual, the
Supreme Court rejected both the “last predicate act” accrual rule and the “injury and pattern
discovery” accrual rule used by the Sixth Circuit and other circuit courts. Klehr v. A. O. Smith Corp.
521 U.S. 179 (1997), and Rotella v. Wood, 528 U.S. 549 (2000). The Sixth Circuit has used the
injury discovery rule, “when a plaintiff knew or should have known of his injury,” in more recent
cases. See Taylor Group v. ANR Storage Co., 24 F. App’x 319, 325 (6th Cir. 2001) (unpublished);
Sims v. Ohio Cas. Ins. Co., 151 F. App’x 433, 435 (6th Cir. 2005) (unpublished).
Plaintiff alleges the Credit Union committed “wire fraud” when “they took monies out of the
savings to try and cover the negative balance.” [DE 1-1, ¶ 8]. She further alleges that the monthly
billing by the Credit Union is “mail and wire fraud.” The first of these events would have occurred
before the account was closed in 2004. The second would have begun shortly after the account
was closed. The statute of limitations would have run on both of these in 2008. Thus, the present
action is outside the four-year statute of limitations for a civil RICO claim.
Because Plaintiff’s claims are totally implausible, frivolous and no longer open to discussion,
they will be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
In light of Plaintiff’s history of abuse of the judicial process, this Court places Misty Lynn Wesley
on notice that any future filing in state court of a claim alleging violations under federal law will
result in sanctions.
IT IS ORDERED:
1.

This action is DISMISSED, sua sponte and this matter is STRICKEN from the active
docket.

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2.

The Court certifies that any appeal would not be taken in good faith. 28 U.S.C. §
1915(a)(3); McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This September 6, 2011.

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