Mwangi v. Bush et al

Filing 6

MEMORANDUM OPINION & ORDER: 1) Mwangi's 2 MOTION for Leave to Proceed in forma pauperis is GRANTED and payment of the $350.00 filing fee and the $50 service fee are WAIVED. 2) Mwangi's 3 MOTION for Leave to File Amended Co mplaint Expanding Court Jurisdiction is GRANTED and his tendered Amended Complaint shall be FILED into the record. 3) Mwangi's 4 MOTION/Plaintiff's Application and Appointment of Pro Bono Counsel is DENIED. 4) Mwangi's 1 Complaint is DISMISSED WITH PREJUDICE. 5) The Court will enter an appropriate Judgment. 6) Matter is STRICKEN from the active docket. Signed by Judge Karen K. Caldwell on 06/18/2013. (KLB) cc: COR, Pro se Pla. Modified text on 6/19/2013 (KLB).

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

ISAAC MURIITHI BURTON THEURI
MWANGI,

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Plaintiff,
V.
GEORGE BUSH, SR., et al.,
Defendants.
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Civil Action No. 5: 12-373-KKC

MEMORANDUM OPINION
AND ORDER

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Isaac Muriithi Burton Theuri Mwangi is a resident of Lexington, Kentucky. Proceeding
without an attorney, Mwangi has filed a civil complaint against former President George W. Bush,
Sr. and “his family”, as well as against MOI University in Eldoret, Kenya, and its sister universities.
[R. 1]
Mwangi has also filed a motion to proceed in forma pauperis. [R. 2] The information
contained in Mwangi’s fee motion indicates that he lacks sufficient assets or income to pay the
$350.00 filing fee and the $50.00 service fee. The Court will therefore waive payment of these fees
pursuant to 28 U.S.C. § 1915(a)(1).
Shortly after filing his original complaint, Mwangi filed a motion to amend his complaint to
include one additional claim and to correct clerical errors in the original. [R. 3] The Federal Rules
of Civil Procedure permit plaintiff to amend his or her pleading once as a matter of right within
twenty-one days after a responsive pleading is required. Fed. R. Civ. P. 15(a)(1)(B); Pertuso v. Ford
Motor Credit Co., 233 F.3d 417, 421 (6th Cir. 2000). Because the Court has not yet ordered that the
complaint be served upon the defendants, the Court will grant the motion. Langford v. Caruso, No.

11-CV-10219, 2011 WL 3348060, at *1 n.2 (E.D. Mich. Aug. 3, 2011); Sublett v. White, No. 5:12CV-P106-R, 2012 WL 5400078, at *1 (W.D. Ky. Nov. 5, 2012).
Mwangi has filed a motion requesting that the Court appoint counsel to represent him in this
case. [R. 4] However, the Court will appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) to
represent a pro se party in civil litigation only in exceptional circumstances. Lanier v. Bryant, 332
F.3d 999, 1006 (6th Cir. 2003). A court reviewing such a motion may consider the complexity of the
case, Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993), the ability of the plaintiff to
represent himself competently, Lanier, 332 F.3d at 1006, and the movant’s likelihood of success on
the merits of the claim, Cleary v. Mukaskey, 307 F. App’x 963, 965 (6th Cir. 2009). The Court has
considered these factors and determined that this case does not present the kind of extraordinary
circumstances which would warrant the appointment of counsel for the plaintiff at the expense of
federal taxpayers, and Mwangi’s motion will be denied.
The Court must conduct a preliminary review of Mwangi’s complaint because he has been
granted permission to proceed in forma pauperis. 28 U.S.C. §§ 1915(e)(2). A district court must
dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Mwangi’s complaint
under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court
accepts the plaintiff’s factual allegations as true, and his legal claims are liberally construed in his
favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
In his amended complaint, Mwangi indicates that:
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This is an action for damages for violation of basic human rights, for the wrongful
rape, for the torture necessitated, for the wrongful breach of personal privacy, for the
purported professionalism as giving cause in carnal knowledge, for concerted attitude
and its warranted assault on physical character, for labeling Abomination irrespective
of physical liaison or contact, for indoctrination recourse on physical identity of
above mentioned Plaintiff Isaac Mwangi under the treaties of the United States, the
Law of Nations and the laws of the states of the United States and the doctrine of
[pendent] jurisdiction.
[R. 3-1, p. 3] Mwangi’s complaint is difficult to decipher, but he indicates that between 1994 and
1999 he was a student in the Cultural Studies program at MOI University in Kenya. [R. 3-1, p. 4]
Mwangi states that he came to the United States in 2003, and became a naturalized United States
citizen in 2008. [R. 3-1, p. 5] Mwangi’s complaint is predicated upon his allegations that:
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President George Bush Snr and family supposedly consensus approaching
and offering their sibling Ms. Barbara Bush as bride to an unknowing
plaintiff and as moderated in Kenya by Moi University’s initiated
unwarranted abuse and harassment.

14.

The Plaintiff at his appointment with JAB’s offices in July 1993 was severely
sexually assaulted by President George Bush [Sr.] only to immediately
attempt to direct a supposed professional JAB for Plaintiff’s student
preferential admission status unaware of and irrespective of JAB’s procedures
and guidelines.

15.

In furtherance of president George Bush [Sr.] decisions and actions as
professional and sovereign, part and parcel of American Constitutional
Scheme, defendant Moi University through Mr. John Obilo in his leadership
role as professor in January of 1996 included and persisted calls for
continuation of literal and physical abuse from fellow students against
Plaintiff and his claim to non physical involvement.

[R. 3-1, pp. 6-7] Mwangi also indicates that Barbara Bush again visited MOI University on May 31,
1994, [R. 3-1, pp. 9-10] although it is unclear how this fact relates to plaintiff’s claims.
Mwangi asserts five causes of action, including that: (1) officials at MOI University labeled
him an “abomination” [R. 3-1, pp. 11-12]; (2) the defendants “converted” his legal person into an

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abomination and committed assault and battery upon him [R. 3-1, pp. 13-15]; (3) the defendants
caused or facilitated the intentional infliction of emotional distress upon him [R. 3-1, pp. 15-16]; (4)
the defendants failed to prevent or terminate human rights violations [R. 3-1, pp. 16-19]; and (5) the
defendants violated the law of nations through their conduct. [R. 3-1, pp. 20-21]
Mwangi asserts that his claims arise directly under the Constitution of the United States, Art.
II, § 2, cl. 1 and Art. VI, cl. 2; the Alien Tort Statute, 28 U.S.C. § 1350; the Declaratory Judgment
Act, 28 U.S.C. §§ 2201-02; 8 U.S.C. § 1252(c); as well as “other pertinent declarations, documents,
and practices constituting the customary International law of human rights and the law of nations,”
including “the U.N. Charter; the Universal Declaration on Human Rights; the U.N Declaration
against torture ...” [R. 3-1, p. 4] Mwangi asserts that the Court possesses jurisdiction over his claims
under the Alien Tort Statute, 28 U.S.C. § 1350; 3 U.S.C. §§ 301-03; the All Writs Act, 28 U.S.C.
§ 1651; the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02; and 10 U.S.C. § 920. [R. 3-1, p. 3]
Having reviewed the complaint, the Court concludes that it must be dismissed for failure to
state a claim. The constitutional provisions cited by the plaintiff - Art. II, § 2, cl. 1 (designating the
President as the Commander in Chief) and Art. VI, cl. 2 (the Supremacy Clause) - do not expressly
provide or permit the inference that a private cause of action to enforce them exists. Cf. Alexander
v. Sandoval, 532 U.S. 275 (2001). The Declaratory Judgment Act provides only an ancillary form
of relief in a pre-existing cause of action; it creates no substantive rights itself. Matthews Intern.
Corp. v. Biosafe Engineering, LLC, 695 F.3d 1322, 1327-28 (Fed. Cir. 2012). Similarly, a federal
court’s authority under the All Writs Act is limited to actions taken in furtherance of orders issued
in a case where jurisdiction is already established. Thorogood v. Sears, Roebuck and Co., 624 F.3d
842, 844 (7th Cir. 2010). And none of the allegations contained in the plaintiff’s complaint suggest
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the relevance or support the applicability of 3 U.S.C. §§ 301-03 (authorizing the President to
delegate certain functions); 8 U.S.C. § 1252(c) (precluding judicial review of orders of removal
predicated upon the commission of certain criminal offenses); or 10 U.S.C. § 920 (defining “rape”
and “carnal knowledge” for purposes of the Uniform Code of Military Justice).
Mwangi also asserts tort claims for assault, battery, and the intentional infliction of emotional
distress, which he attempts to pursue under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). That
section provides that “[t]he district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Mwangi’s attempt to invoke the ATS must fail for three reasons.
First, Mwangi indicates that he is currently a naturalized United States citizen, and thus is
not an “alien” who may file suit under the ATS. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 38 (D.D.C.
2010); Mohamad v. Rajoub, 664 F. Supp. 2d 20, 21 n.1 (D.D.C. 2009), aff’d, 634 F.3d 604 (D.C.
Cir. 2011), aff’d, ___ U.S. ___, 132 S. Ct. 1702 (2012); Wiwa v. Royal Dutch Petroleum Co., 626
F. Supp. 2d 377, 389 (S.D.N.Y. 2009).
Second, Mwangi alleges that the events giving rise to the claims asserted in the complaint
occurred in 1993 and 1994. The Sixth Circuit has concluded that the ten-year statute of limitations
period applicable to claims pursued under the Torture Victims Protection Act also applies to claims
under the ATS. Chavez v. Carranza, No. 06-6234, 2009 WL 670022, at *1-3 (6th Cir. Mar. 17,
2009). It is true that “[t]he statute of limitations should be tolled during the time the defendant was
absent from the United States or from any jurisdiction in which the same or similar action arising
from the same facts may be maintained by the plaintiff ...,” id. at 3-4 (quoting S. Rep. No. 102–249,
at 10–11 (1991)). Even assuming (without deciding) that the courts of Kenya were incapable of
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providing Mwangi with an adequate legal remedy for his claims, he came to the United States in
2003, and has not suggested that any impediment prevented him from filing suit in the decade
following his emigration. His claims are therefore time barred.
Finally, even if this were not so, the Supreme Court has recently concluded that the ATS only
authorizes the exercise of subject matter jurisdiction over claims predicated upon tortious conduct
occurring within the United States, and not to conduct occurring in foreign territory. Kiobel v. Royal
Dutch Petroleum Co., ___ U.S. ___, 133 S.Ct. 1659, 1669 (Apr. 17, 2013). Because all of the
conduct which provides the basis for Mwangi’s claims occurred in Kenya, the Court lacks
jurisdiction under the ATS to reach it.
Accordingly, IT IS ORDERED that:
1.

Mwangi’s motion for leave to proceed in forma pauperis [R. 2] is GRANTED and

payment of the $350.00 filing fee and the $50.00 service fee are WAIVED.
2.

Mwangi’s motion for leave to file an amended complaint [R. 3] is GRANTED, and

his tendered Amended Complaint [R. 3-1] shall be FILED into the record.
3.

Mwangi’s motion for the appointment of counsel [R. 4] is DENIED.

4.

Mwangi’s complaint [R. 1] is DISMISSED WITH PREJUDICE.

5.

The Court will enter an appropriate judgment.

6.

This matter is STRICKEN from the active docket.

Entered this 18th day of June, 2013.

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