Hopson v. Cunningham et al

Filing 5

MEMORANDUM OPINION by Judge John G. Heyburn, II on 7/18/13; For the reasons set forth, the action will be dismissed by separate Order.cc: Plaintiff, pro se (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DeANDRE HOPSON

PLAINTIFF

v.

CIVIL ACTION NO. 3:13-CV-226-H

CHARLIE CUNNINGHAM et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, DeAndre Hopson, filed a pro se, in forma pauperis complaint. This matter is
now before the Court for screening pursuant to 28 U.S.C. § 1915(e)(2) and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the action will be
dismissed.
I. SUMMARY OF CLAIMS
Plaintiff sues multiple Defendants: Charlie Cunningham; CPS Louisville; Judge Gerber;
Carlyn Mari; Children’s Government Attorney; Ruth Spencer; Benny Berry; Charles Hadgan;
David Weinburg; Susan Gibson; Public Defenders Office (Don Rodgers); Louisville County
Attorneys; Division 5 CPS Worker; and the Louisville Police Department. The complaint is
lengthy, rambling, and difficult to follow. It appears to contain allegations that Defendant Mari
fabricated documents to say that CPS issued a “no contact” order in 2009. He alleges that Judge
Gerber “falsely tr[ied] to stage a false hearing,” apparently involving an emergency protective
order involving a domestic dispute. He alleges a vast conspiracy of all courts working together
to imprison Plaintiff to “avoid Commonwealth from being charged of false medicare and
medicaid acts. All people have family members in court position and power. Rackeetering
using the courts as a interprise to control everyone as they put them on probation to control as
human slaves.”

II. ANALYSIS
This Court must review the instant action. See 28 U.S.C. § 1915(e)(2); McGore v.
Wrigglesworth, 114 F.3d at 608-09. Upon review, this Court must dismiss a case at any time if
the Court determines that the action 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. 28 U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a
light most favorable to the plaintiff and accept all of the factual allegations as true. Prater v.
City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A complaint, or portion thereof, should
be dismissed for failure to state a claim upon which relief may be granted “only if it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would
entitle him to relief.” Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000).
While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall,
454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
Claims related to domestic relations
Many of Plaintiff’s claims relate to child custody proceedings and actions by Child
Protective Services. Domestic relations law is governed by state law and state institutions.

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Principles of federalism preclude federal court challenges to state-court orders in child custody
and child support matters. See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979);
Roman-Nose v. N.M. Dep’t of Human Servs., 967 F.2d 435, 437 (10th Cir. 1992) (federal action
alleging constitutional infirmity in state parental-rights proceeding could not be maintained
under 42 U.S.C. § 1983). If Plaintiff is dissatisfied with the ruling of a state court, he must either
appeal those rulings in a timely manner or request that the court modify its ruling. Thus,
Plaintiff’s challenge to the state court’s adjudications regarding Plaintiff’s children and domestic
situation must be dismissed for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).
Whistle-blowing
Although near the beginning of his complaint, Plaintiff writes, “Whistle Blowing
Action,” he does not cite to a specific statute, and there are several federal statutes prohibiting
retaliation against whistleblowers. See, e.g.5 U.S.C. § 1221 (Whistleblower Protection Act); 31
U.S.C. § 3730(h) (False Claims Act); 33 U.S.C. § 1367(a) (Federal Water Pollution Control
Act); 42 U.S.C. § 7622 (Clean Air Act); among others. None of these statutes would apply to
the facts alleged by Plaintiff. Any whistleblower claims will be dismissed.
False Claims Act
Plaintiff’s complaint references the False Claims Act (FCA). The FCA is found at 31
U.S.C. § 3729, et seq. It “is an anti-fraud statute that prohibits the knowing submission of false
or fraudulent claims to the federal government.” United States ex rel. Bledsoe v. Cmty. Health
Sys., Inc., 342 F.3d 634, 640 (6th Cir. 2003). Under the FCA, a private individual, known as a

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relator, may bring suit alleging FCA violations on behalf of the government; such an action is
known as a qui tam action. Id.; United States v. Health Possibilities, P.S.C., 207 F.3d 335, 342
n.5 (6th Cir. 2000) (noting that “the United States is the real-party-in-interest in FCA litigation”).
However, qui tam actions cannot be brought by a pro se relator. Because “a qui tam
relator . . . sues on behalf of the government and not himself[, h]e therefore must comply with
the general rule prohibiting nonlawyers from representing other litigants.” United States ex rel.
Szymczak v. Covenant Healthcare Sys., Inc., 207 F. App’x 731, 732 (7th Cir. 2006) (citation
omitted); see also Jones v. Jindal, 409 F. App’x 356 (D.C. Cir. 2011) (per curiam); United States
ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92-94 (2nd Cir. 2008); Timson v. Sampson, 518
F.3d 870, 873-74 (11th Cir. 2008); Rogers v. Sacramento Cnty., 293 F. App’x 466, 467 (9th Cir.
2008); United States ex rel. Brooks v. Lockheed Martin Corp., 237 F. App’x 802, 803 (4th Cir.
2007) (per curiam); Brantley v. Title First Titling Agency, No. 1:12-cv-608, 2012 WL 6725592,
at *3 (S.D. Ohio Sept. 27, 2012); Carter v. Washtenaw Cnty., No. 09–14994, 2010 WL 3222042,
at *1 (E.D. Mich. Aug. 13, 2010).
Accordingly, because Plaintiff is proceeding pro se in this action, he is prohibited from
bringing an FCA claim, and that claim will be dismissed.
Remaining claims
Plaintiff’s complaint almost exclusively contains broad and conclusory allegations that
are not entitled to the assumption of truth. See Abner v. Focus: Hope, 93 F. App’x 792, 793 (6th
Cir. 2004) (stating that the court is not “required to accept non-specific factual allegations and
inferences or unwarranted legal conclusions”). These conclusions are not supported by factual
allegations that would “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009). Plaintiff’s complaint is rambling, disjointed, implausible, and fails, as it is
required to do, to contain “either direct or inferential allegations respecting all the material
elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy
Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101, 1106 (7th Cir. 1984)).
Additionally, under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must
contain “a demand for the relief sought, which may include relief in the alternative or different
types of relief.” Plaintiff requested no relief in his complaint and, thus, fails to comply with the
federal rules.
Finally, “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.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.
1999) (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). Plaintiff’s complaint meets this
standard and will be dismissed on this basis as well.
III. CONCLUSION
For the foregoing reasons, the Court will, by separate Order, dismiss Plaintiff’s
complaint.
Date:

July 18, 2013

cc:
Plaintiff, pro se
4412.009

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