Lotton v. USA

Filing 20

MEMORANDUM OPINION & ORDER: (1) The United States' motion to dismiss, R. 13 , is GRANTED. Lotton's claims against the United States in his complaint, R. 1 ; R. 1 -1, amended complaint, R. 6 , second amended complaint, R. 9 , and acco mpanying letters, R. 14 ; R. 16 ; R. 18 ; R. 19 , are DISMISSED WITH PREJUDICE. The Court will enter judgment in this case after all claims against all defendants have been resolved. (2) The Clerk shall TERMINATE the United States of America as a defendant in this matter, ADD the Corbin Police Department as a defendant, and RENAME the action accordingly on the Courts docket. (3) The Court APPOINTS and DIRECTS the United States Marshals Service to serve Lotton's complaint, R. 1, his atta ched statement, R. 1-1, his first amended complaint, R. 6 , his second amended complaint, R. 9 , his response, R. 16 , his accompanying letters, R. 14 ; R. 18 ; R. 19 , a summons, and a copy of this Order upon the Corbin Police Department in Corbin, Kentucky. Corbin Police Department added. Signed by Judge Amul R. Thapar on 6/21/2012.(RBB)cc: COR, USM, pro se filer via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
)
)
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Plaintiff,
Civil No. 11-258-ART
)
)
v.
)
MEMORANDUM OPINION
)
UNITED STATES OF AMERICA,
& ORDER
)
)
Defendant.
)
*** *** *** ***
STEVEN LEE LOTTON,

Steven Lee Lotton has filed a pro se complaint against the ―United States Military,
United States Government,‖ and ―United States People‖ as well as several state governments
and the Corbin Police Department. R. 1. He claims that they have violated his civil rights
and committed torts against him over his lifetime, including:
1. That the Federal Bureau of Investigation and other federal agencies violated
his civil rights by failing to investigate his injuries and help protect him, R. 14
at 3–4;
2. That, during his childhood, the federal government and various state
governments failed to prevent him from being exposed to bar fights and
similar incidents, R. 1-1 at 1, and failed to intervene when his parents left him
in the back of a car while they went into a bar, R. 1-1 at 3;
3. That the United States military used mind control to torture him, his wife, his
father, and his grandfather as well as to make Lotton force his wife to get an
abortion, R. 1-1 at 1; R. 6 at 1, 3; and
4. That law enforcement from the Corbin Police Department brutally assaulted
him, R. 1-1 at 1.
These events allegedly occurred from 1969 through the present. R. 1 at 3. As relief, Lotton
wants (1) to file torture and attempted murder charges for ―each day [he has] been alive,‖
R. 1 at 2; (2) to have everyone who knew of these harms sentenced to death, R. 6 at 4; (3) to

be transferred to the ―World Court‖ (formally known as the International Court of Justice),
R. 1 at 2; (4) to renounce his citizenship and have the Court deport him, R. 1 at 2; and (5) to
be awarded ―trillions of dollars in damages,‖ R. 16 at 2. The United States has moved to
dismiss Lotton‘s claims. R. 13.
Lotton sincerely believes that he has suffered greatly at the hands of the United States
and its citizens. The Court wishes that it had the power to help him avoid future suffering.
Unfortunately, for the reasons provided below, this Court has neither the authority nor the
ability to assist him on most of his claims. All of Lotton‘s claims against the United States
must be dismissed. It appears, however, that Lotton has stated a claim for relief against the
Corbin Police Department for allegedly ―brutalizing‖ him and then refusing to provide him
with medical attention.
A. The Court Lacks Power to Grant the Non-Monetary Relief that Lotton seeks.
As a threshold matter, none of the non-monetary relief that Lotton seeks is available
through the federal courts. Lotton asks the Court to prosecute the individuals responsible for
his suffering and sentence them to death, but federal courts do not have the authority to begin
criminal prosecutions. The power to criminally prosecute is committed to the executive
branch. See, e.g., Peek v. Mitchell, 419 F.2d 575, 577 (6th Cir. 1970) (holding that the
investigation and commencement of criminal prosecution belongs to the Attorney General,
not to federal courts). It ―is beyond the power‖ of this Court. Id.
The same is true of Lotton‘s request to have Court deport him to another country:
only the executive branch has the authority to begin deportation proceedings. Accord Reno
v. Flores, 507 U.S. 292, 305 (1993) (―[T]he responsibility for regulating the relationship
between the United States and our alien visitors has been committed to the political branches
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of the Federal Government.‖ (citation omitted)). Congress has, however, provided a process
for renouncing one‘s citizenship: by ―voluntarily performing‖ any one of a list of
―expatriating acts‖ with the intention to give up United States citizenship. See, e.g., Fox v.
Clinton, __ F.3d __, 2012 WL 2094410, at *2 (D.C. Cir. June 12, 2012) (quoting 8 U.S.C.
§ 1481(a)). If Lotton is still interested in getting rid of his U.S. citizenship, he should contact
the State Department.
Lotton also asks to be transferred to the World Court (formally known as the
International Court of Justice). Yet federal courts do not have the power to transfer cases to
courts outside of the United States. See, e.g., Guidi v. Inter-Continental Hotels Corp., 224
F.3d 142, 148 (2d Cir. 2000) (holding that when the ―alternative forum‖ for a case is a
foreign court, the statutes allowing federal courts to transfer the case to another court do not
apply). Instead, if a foreign court is the more appropriate place for a plaintiff‘s claims, then
the federal court should dismiss the case so that the plaintiff can bring his lawsuit in the
foreign court. See, e.g., Rustal Trading U.S., Inc. v. Makki, 17 F. App‘x 331, 338 (6th Cir.
2001) (upholding the dismissal of a plaintiff‘s case when a foreign court was the more
appropriate venue for the plaintiff‘s claims). If Lotton believes he can bring some of his
claims in a foreign court, he is free to try. The Court, however, lacks the authority to transfer
his case to a foreign jurisdiction or to grant any of the other non-monetary relief that Lotton
seeks.
B. The Court Lacks Power to Hear Lotton’s Claims Against Federal Agencies
or the United States Itself.
The Court is also powerless to hear Lotton‘s claims against the United States and
various federal agencies. The United States, including its agencies, are immune from all

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lawsuits except those to which the United States consents. See, e.g., Nuclear Trans. &
Storage, Inc. v. United States, 890 F.2d 1348, 1352 (6th Cir. 1989). Lotton alleges that
various federal agencies, including the United States Attorney‘s Office for the Eastern
District of Virginia and the FBI, have failed to investigate his injuries and help stop his
suffering. See R. 14 at 4. But the United States has not consented to be sued on these civil
rights claims. See, e.g., Fagan v. Luttrell, 225 F.3d 658, at *3 (6th Cir. 2000) (unpublished
table decision).
In response, Lotton argues that the United States is not immune from suit because it is
responsible for his injuries. See R. 16 at 2. Sovereign immunity, however, applies regardless
of how bad Lotton‘s injuries may be. Before the United States was formed, no English
subject could sue his government because ―the king or queen, as the ultimate source of
authority, could do no wrong and should not be disturbed in the exercise of his or her
sovereign powers.‖ 14 Charles A. Wright et al., Federal Practice & Procedure: Jurisdiction
and Related Matters § 3654 (3d ed. 2012).

The states—and eventually the federal

government—borrowed this idea of sovereign immunity when they formed the United States.
Id. Still, for the first half of the nineteenth century, the United States did not consent to be
sued on any claims for money damages; the ―only recourse available to private claimants was
to petition Congress for relief.‖ United States v. Mitchell, 463 U.S. 206, 212 (1983).

No

matter how greatly a plaintiff may have been injured by the federal government during that
period of time, he was unable to sue the United States until Congress enacted the first waiver
of sovereign immunity in 1887. Act of March 3, 1887, ch. 359, 24 Stat. 505. Thus, even if
the United States were to purposefully violate all of Lotton‘s civil rights, he still could not

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sue the United States itself or any federal agencies because the government has not consented
to be sued for civil rights claims.
C. The Court Must Dismiss Lotton’s Claim that Federal and State Governments
Failed to Protect Him During His Childhood.
Because the federal and state governments did not have a duty to protect Lotton from
his childhood abuse, this claim must also be dismissed. There is ―generally no constitutional
duty on the part of government officials to protect members of the public against harm
inflicted by third parties.‖ O’Brien v. Maui Cnty., 37 F. App‘x 269, 271 (9th Cir. 2002)
(citing DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 196–97 (1989)).
To be sure, there are two exceptions to this rule: ―(1) when the state has a special relationship
to the victim, and (2) when the state creates the danger that led to the victim‘s harm.‖
Hudson v. Hudson, 475 F.3d 741, 745 (6th Cir. 2007) (citing Jones v. Union Cnty., 296 F.3d
417, 428 (6th Cir. 2002)).

For example, if a state imprisons a criminal defendant or

involuntarily commits someone to an institution, then the state has created a special
relationship with that person and must ―assume some responsibility for his safety and wellbeing.‖ Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 856 (5th
Cir. 2012) (en banc). Or if police encourage a group of skinheads to assault an individual at
a political rally and assure the attackers that they will not be arrested, then the state has a
duty to prevent the attack because it actively facilitated the victim‘s injuries. See Dwares v.
City of New York, 985 F.2d 94, 99 (2d Cir. 1993), abrogated on other grounds by
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163
(1993).

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Unlike those two examples, however, Lotton does not assert that the federal or state
governments had taken him into its custody involuntarily during these childhood incidents or
that the United States had a hand in creating the risk that these childhood incidents would
occur. Cf. DeShaney, 489 U.S. at 191–93 (holding that a county social services department
had no duty to prevent a father from beating his four-year-old son even though a pattern of
abuse had been reported to social services months beforehand). These claims must therefore
be dismissed.
D. Lotton’s Claims Based on Mind Control Must be Dismissed.
The rest of Lotton‘s claims against the United States—mind-control-based allegations
for monetary damages—meet a similar fate. Even if the Court construes these allegations as
claims under the Federal Tort Claims Act, the Court must dismiss these claims because they
are factually implausible. See Premo v. United States, 599 F.3d 540, 544 (6th Cir. 2010)
(―The FTCA ‗was designed primarily to remove the sovereign immunity of the United States
from suits in tort and, with certain specific exceptions, to render the Government liable in
tort as a private individual would be under like circumstances.‘‖ (quoting Richards v. United
States, 369 U.S. 1, 6 (1962))). A complaint must ―contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.‖ Bartholomew v. Blevins, 679
F.3d 497, slip op. at 3 (6th Cir. 2012) (emphasis added) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). Of course, a pro se plaintiff‘s complaint is held to a ―less stringent
standard‖ than one prepared by an attorney. Martin v. Overton, 391 F.3d 710, 712 (6th Cir.
2004). For example, an inmate‘s complaint alleging that a prison physician failed to treat his
injuries is sufficiently plausible to avoid dismissal. E.g., Barnett v. Luttrell, 414 F. App‘x
784, 789 (6th Cir. 2011). So, too, is a state employee‘s claim that he was fired in retaliation
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for exercising his First Amendment right of free speech. E.g., Paige v. Coyner, 614 F.3d
273, 275 (6th Cir. 2010).
Even when Lotton‘s complaint is ―liberally construed,‖ Martin, 391 F.3d at 712,
however, his story fails to state a claim on which relief can be granted. Every United States
Court of Appeals—including the Sixth Circuit, which this Court must follow—has upheld
the dismissal of claims based on mind control because mind control is not plausible given the
human race‘s current technological capabilities. See, e.g., Abascal v. Jarkos, 357 F.App‘x
388, 390 (2d Cir. 2009) (affirming the dismissal of claims based on mind control as ―clearly
baseless‖ (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989))); Jamison v. Costco
Wholesale, 280 F. App‘x 738, 740 (10th Cir. 2008) (affirming the dismissal of claims based
on mind control because they ―rise to the level of the irrational or the wholly incredible‖
(quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992))); Gale v. Williams, 154 F. App‘x
494, 495 (7th Cir. 2005) (affirming the dismissal of such a claim as an ―inconceivable
fantasy‖) Moyer v. IBM Corp., 81 F. App‘x 662, 662 (9th Cir. 2003); Burnes v. Clinton, 238
F.3d 419, 2000 WL 1800510, at *1 (6th Cir. 2000) (affirming the dismissal of claims that
government officials tortured the plaintiff via mind control); see also Graves v. Cohen, 238
F.3d 421, 2000 WL 1720647, at *1 (6th Cir. 2000) (upholding the dismissal of claims that
the Pentagon developed and released the AIDS virus on the American public).
Consequently, the Court must dismiss the rest of Lotton‘s claims against the United States.
E. Lotton’s Allegation of Police Brutality by the Corbin Police Department Is
Not Dismissed.
In addition to his claims against the United States, federal agencies, and various state
governments, Lotton also alleges that he is the victim of police brutality. He claims that law

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enforcement from the Corbin Police Department in Corbin, Kentucky, tazed him, handcuffed
him, ―slammed‖ him to the floor face-first, kneed him in the chest, and ―slammed‖ his head
on a car before taking him to the police station. R. 14 at 4. Upon arrival at the station,
Lotton says, the police dragged him out of the car and ―slammed‖ him face-first onto the
pavement before using ―his back as a step.‖ R. 14 at 4. According to Lotton, the police then
refused to provide him with any medical attention for his injuries despite his repeated
requests. R. 14 at 4.
Construing his complaint liberally and taking his allegations as true, as the Court
must, these allegations appear to state a claim for relief under 28 U.S.C. § 1983 for excessive
force in violation of the Fourth Amendment. See, e.g., Schreiber v. Moe, 596 F.3d 323, 331–
32 (6th Cir. 2010) (―‗[A]ll claims that law enforcement officers have used excessive force
. . . in the course of an arrest, investigatory stop, or other seizure of a free citizen should be
analyzed under the Fourth Amendment and its reasonableness standard . . . .‘‖ (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989))). At this time, the Court does not have any
information warranting dismissal of this claim. Consequently, the Court will direct the
United States Marshals Service to serve the Corbin Police Department with Lotton‘s
complaints, a summons, and a copy of this Order. See Fed. R. Civ. P. 4(c)(3); see also id.,
Notes of Advisory Committee on 1993 Amendments to Rules, subdiv. (c) (―The court
remains obligated to appoint a marshal, deputy, or some other person to effect service of a
summons in two classes of cases specified by statute: actions brought in forma pauperis or by
a seaman.‖). Once the Corbin Police Department is served, it will respond to Lotton‘s
allegations. See Fed. R. Civ. P. 12(a).

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Accordingly, it is ORDERED that:
(1)

The United States‘ motion to dismiss, R. 13, is GRANTED. Lotton‘s claims
against the United States in his complaint, R. 1; R. 1-1, amended complaint,
R. 6, second amended complaint, R. 9, and accompanying letters, R. 14; R. 16;
R. 18; R. 19, are DISMISSED WITH PREJUDICE. The Court will enter
judgment in this case after all claims against all defendants have been
resolved.

(2)

The Clerk shall TERMINATE the United States of America as a defendant in
this matter, ADD the Corbin Police Department as a defendant, and
RENAME the action accordingly on the Court‘s docket.

(3)

The Court APPOINTS and DIRECTS the United States Marshals Service to
serve Lotton‘s complaint, R. 1, his attached statement, R. 1-1, his first
amended complaint, R. 6, his second amended complaint, R. 9, his response,
R. 16, his accompanying letters, R. 14; R. 18; R. 19, a summons, and a copy of
this Order upon the Corbin Police Department in Corbin, Kentucky.

This the 21st day of June, 2012.

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