McNutt v. White et al

Filing 5

MEMORANDUM OPINION & ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Signed by Chief Judge Thomas B. Russell on 9/6/2011. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH

JESSE R. McNUTT

PLAINTIFF

v.

CIVIL ACTION NO. 5:11-CV-148-R

EDWIN N. WHITE et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff, Jesse R. McNutt, pro se, moves to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a)(1) in this case (DN 3). The Court concludes that Plaintiff cannot without
undue hardship pay the fees or costs in this action. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion (DN 3) is GRANTED.
This matter is 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 initiated this action by filing a complaint against Defendants Edwin N. White
and Robert J. Hines, who he refers to as “purported judges.” He states that this Court has
jurisdiction under 18 U.S.C. § 1001 and 28 U.S.C. § 1331. He asserts that on December 21,
2009, and July 27, 2011, orders were entered by the Calloway Circuit Court order by court
officers who were without jurisdiction to do so or to sell real property located at 1405 W. Main
St., Murray, Kentucky. Among other things, he attaches a copy of a Calloway Circuit Court
entered on November 17, 2009, and signed by Senior Judge Edwin White ordering Plaintiff to
produce evidence that he can pay his debt to the United States. He also attaches a Calloway

Circuit Court order dated July 27, 2011, referring the case to a master commissioner for a
judicial sale.

In his motion for injunctive relief, Plaintiff states that this Court has jurisdiction under 28
U.S.C. § 1331 and “Appeal of Fee Determination under Equal Access to Justice.” He asks two
seemingly rhetorical questions:
1. Can two courts have jurisdiction at the same time over the same
personal subject matter? When the matter has been adjudicated res
judicata by a court of competent jurisdiction. 2. Can a Kentucky
state court order a sale of real property . . . for a fine and fee while
ignoring an order by a Federal court of competent jurisdiction?
As relief, Plaintiff asks for a temporary injunction prohibiting the sale of his home.
II. ANALYSIS
This Court must review the instant action. See 28 U.S.C. § 1915(e)(2); McGore v.
Wrigglesworth, 114 F.3d at 604-05. 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

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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).
Plaintiff has not provided any basis for this Court to exercise jurisdiction over this case.
Section 1001 of Title 18 of the U.S. Code is part of the criminal code, and there is no private
cause of action under this statute. See Abou-Hussein v. Gates, 657 F. Supp. 2d 77, 81 (D.D.C.
2009). Under the federal-question statute, codified at 28 U.S.C. § 1331, “The district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” However, Plaintiff does not point to any constitutional or federal-law
provision in his complaint.
In his affidavit which he attaches to his motion for injunctive relief, he states:
Quasi-military tribunals &/or quasi administrative commissioners
acting under color of law hold no treaty jurisdiction/venue nor is
there any “trust” relationship held by United States Corporation of
America as denied in Title 28 U.S.C. § 3002(15)(A) the above are
without mandate or political jurisdiction over my status as a
belligerent claimant to a republican form of government granting
me unalienable rights as a man. Const. Art. IV. § 4.
Article IV, Section 4, also known as the Guarantee Clause, presents no justiciable
question. See Baker v. Carr, 369 U.S. 186, 224 (1962); City of Rome v. United States, 446 U.S.
156, 182 n.17 (1980) (“We do not reach the merits of the appellants’ argument that the Act

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violates the Guarantee Clause . . . since that issue is not justiciable.”); Luther v. Borden, 48 U.S.
1 (7 How.) 1, 38-39 (1849). Thus, the Court finds that Plaintiff has provided no jurisdictional
basis for this action, which is his burden to do. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994).
Moreover, what Plaintiff wishes to do in this case is challenge the decision of a Kentucky
state court. As such, this case is barred by the Rooker-Feldman doctrine, under which federal
courts lack jurisdiction to review a case litigated and decided in state court. District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 482 & n.16 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 415-16 (1923). The doctrine prevents both a direct attack of the substance of a
state-court decision and a challenge to the procedures used by the state court in arriving at its
decision. Anderson v. Charter Twp. of Ypsilanti, 266 F.3d 487, 493 (6th Cir. 2001).
Because Plaintiff is “asking this Court to enter an order that will effectively render the
final judgment entered by the state court null and void,” his complaint is “subject to dismissal for
lack of subject matter jurisdiction and fails to state a claim upon which relief may be granted.”
McCroy v. New York Bank and Trust Co., No. 08-12701, 2008 WL 2714116, at *1 (E.D. Mich.
July 07, 2008) (dismissing case as frivolous under § 1915(e) where pro se plaintiff sued bank
after property foreclosed on in state-court proceeding); see also Moore v. Deutsche Bank Nat’l,
No. 07-11114, 2007 WL 3053675, at **4-5 (E.D. Mich. Oct. 19, 2007) (finding that dismissal
under § 1915(e)(2) warranted based on Rooker-Feldman abstention where plaintiff’s property
sold as a result of a state-court foreclosure action).

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III. CONCLUSION
For the foregoing reasons, the Court will enter an Order consistent with this
Memorandum Opinion and Order.
Date:

September 6, 2011

cc:
Plaintiff, pro se
4413.009

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