Bradford v. Louisiana Department of Public Safety and Corrections et al

Filing 9

REPORT AND RECOMMENDATIONS regarding 1 Complaint, filed by Kenneth Ray Bradford. It is recommended that the plaintiff's action be dismissed as legally frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U .S.C. § 1915A, without prejudice to the plaintiff's right to seek habeas corpus relief under 28 U.S.C. § 2254.. Objections to R&R due by 2/16/2012. Signed by Magistrate Judge Christine Noland on 1/30/2012. (CMM) Modified on 1/30/2012 to edit text. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KENNETH RAY BRADFORD

CIVIL ACTION

VERSUS
LOUISIANA DEPARTMENT OF CORRECTIONS, ET AL.

NO. 11-0750-JJB-CN

NOTICE
Please take notice that the attached Magistrate Judge’s Report has
been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14)
days after being served with the attached Report to file written
objections to the proposed findings of fact, conclusions of law and
recommendations therein.
Failure to file written objections to the
proposed findings, conclusions, and recommendations within 14 days after
being served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal
conclusions of the Magistrate Judge which have been accepted by the
District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in chambers in Baton Rouge, Louisiana, January 30, 2012.

MAGISTRATE JUDGE CHRISTINE NOLAND

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KENNETH RAY BRADFORD

CIVIL ACTION

VERSUS
LOUISIANA DEPARTMENT OF CORRECTIONS, ET AL.

NO. 11-0750-JJB-CN

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
The

pro

Correctional

se

plaintiff,

Center

an

(“RCC”),

inmate

Angie,

incarcerated

Louisiana,

at

filed

the

Rayburn

this

action,

purportedly as a diversity proceeding under 28 U.S.C. § 1332, against
Secretary James LeBlanc and Warden Robert Tanner.1 The plaintiff alleges
that he is a “sovereign” individual and that the courts of the State of
Louisiana do not have jurisdiction over him.

He prays for a release from

custody, for a release of his “property”, and for other “just and
equitable relief”.
Pursuant to 28 U.S.C. § 1915A, this Court is authorized to dismiss
an action brought by a prisoner against a governmental entity or officer
or employee of a governmental entity if satisfied that the action is
frivolous, malicious or fails to state a claim upon which relief may be
granted.

28 U.S.C. § 1915(e).

1116 (5th Cir. 1986).

1

See also, Green v. McKaskle, 788 F.2d

Such an action is properly dismissed as frivolous

In his original Complaint, the plaintiff named the Louisiana
Department of Public Safety and Corrections as a defendant herein. In
an Amended Complaint, however, rec.doc.no. 6, the plaintiff has
substituted James LeBlanc, the Secretary of the Department, as a
defendant herein.
Generally, “[a]n amended complaint supersedes the
original complaint and renders it of no legal effect unless the amended
complaint specifically refers to and adopts or incorporates by reference
the earlier pleading.”
King v. Dogan, 31 F.3d 344 (5th Cir. 1994).
Inasmuch as the plaintiff’s amended complaint in this case did not
incorporate his earlier pleading, the Court interprets the amended
pleading as terminating the Louisiana Department of Public Safety and
Corrections as a defendant in this proceeding and substituting Secretary
Richard Stalder as a defendant herein.

if the claim lacks an arguable basis either in fact or in law.

Denton

v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), citing
Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989); Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995).

A claim has no

arguable basis in law if it is based on an indisputably meritless legal
theory, “such as if the complaint alleges the violation of a legal
interest which clearly does not exist.”

Davis v. Scott, 157 F.3d 1003

(5th Cir. 1998). The law accords judges not only the authority to dismiss
a claim based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the factual allegations and dismiss
those claims whose factual contentions are clearly baseless, a category
encompassing allegations that are fanciful, fantastic and delusional.
Neiztke v. Williams, supra, Denton v. Hernandez, supra.

Pleaded facts

which are merely improbable or strange, however, are not frivolous for
purposes of § 1915:.
Cir. 1992).

Id.; Ancar v. SARA Plasma, Inc., 964 F.2d 465 (5th

A § 1915A dismissal may be made at any time, before or after

service of process and before or after an answer is filed.

See Green v.

McKaskle, supra.
From a review of the plaintiff’s Complaint, as amended, it appears
that he is currently confined and is serving a criminal sentence entered
in the Nineteenth Judicial District Court for the Parish of East Baton
Rouge.

He asserts that in June, 2007, he executed a formal “Declaration

and Certificate of Sovereign Status” and a “Formal Sovereign Oath of
Renunciation,”

pursuant

to

which

he

has

purportedly

renounced

his

American citizenship in accordance with 8 U.S.C. § 1481(6) and has become
an independent “foreign sovereign” and a “member of the Republic of
Louisiana”.

He contends, therefore, that the State of Louisiana no

longer has jurisdiction to maintain him in custody and that this Court

should order his release from confinement as an “International Protected
Person”.

He invokes the diversity jurisdiction of this Court as well as

federal subject matter jurisdiction, citing both 28 U.S.C. §§ 1331 and
1332, and he contends that this action is subject to review as involving
the claim of a foreign state, citing 28 U.S.C. § 1602, et seq.
he

asserts

that

he

has

recorded

and

perfected

with

the

Finally,
Louisiana

Secretary of State a security interest in “property” which he describes
as being “Case # 04-02-0050" on the Docket of the Nineteenth Judicial
District Court, which is apparently the case number assigned to his
criminal prosecution.
of such “property”.

As a result, he contends that he is now the owner
The state court, however, has allegedly refused to

release this “property” to him and to have such “property” removed from
the state court docket.
The plaintiff is not entitled to the relief requested. In the first
place, there is no basis for the invocation of diversity jurisdiction in
this case.
original

Pursuant to 28 U.S.C. § 1332, federal district courts have

jurisdiction

over

civil

actions

which

involve

amounts

in

controversy exceeding $75,000.00 and which are between citizens of
different states or between a citizen of a state and a foreign national
or sovereign.

Notwithstanding, although the plaintiff asserts that he

is a foreign sovereign and is a member of the “Republic of Louisiana”,
and although he alleges to have executed a formal Declaration to this
effect, along with an “Oath of Renunciation,” renouncing his United
States citizenship, it appears clear to this Court that these documents
are of no legal effect and that the plaintiff remains a citizen of the
state of Louisiana.

Specifically, although 8 U.S.C. § 1481(6) allows a

United States citizen to voluntarily renounce his citizenship, the
statute requires that a person wishing to do so must execute a form to

this effect, prescribed by the Attorney General of the United States or
his designee, and the Attorney General or his designee must formally
approve such renunciation upon a determination that the renunciation is
not

contrary

to

the

interests

of

national

defense.

There

is

no

suggestion in the record that the terms of this statute have been
complied with.

See Kaufman v. Mukasey, 524 F.3d 1334 (D.C. Cir. 2008).

Accordingly, the plaintiff’s contention that he is a foreign sovereign
is unavailing, and inasmuch as this lawsuit involves a claim by and
between

Louisiana

citizens,

this

Court

does

jurisdiction to consider the plaintiff’s claims.

not

have

diversity

See Thompson v. Dodge,

2011 WL 2413108 (W.D. Mich., June 14, 2011) (holding that diversity
jurisdiction was not present where the plaintiff claimed to be a “citizen
of the Republic of Michigan”).
Turning to the plaintiff’s invocation of federal subject matter
jurisdiction, the Court next concludes, similarly, that because the
plaintiff is clearly not entitled to be recognized as a foreign national
or a sovereign entity, he may not seek the jurisdiction of this Court by
asserting that this case involves a claim by a “foreign state” within the
meaning of 28 U.S.C. § 1602, et seq.

Accordingly, there is no basis for

the Court’s exercise of jurisdiction under this statute.
Further, although the plaintiff does not purport to bring this
action under 42 U.S.C. § 1983, the Court will liberally evaluate his
Complaint

to

determine

whether

constitutional civil rights.

he

alleges

a

violation

of

his

See Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that courts should liberally
interpret the pleadings of pro se litigants). Undertaking this analysis,
the Court concludes that he does not.

Specifically, the plaintiff makes

no reference to any specific constitutional right which he asserts has

been violated, and his theory that he has, by merely executing and
recording a document which purports to be a security agreement and lien,
become the owner of his criminal proceedings, has no basis in law, is
clearly delusional and is patently incorrect.
5683432 (W.D. Tex., Dec. 23, 2008).

See Ali v. Bragg, 2008 WL

Accordingly, the plaintiff fails to

state a claim relative to the violation of his constitutional civil
rights.
Finally, it appears clear to this Court that what the plaintiff is
really seeking to achieve in this case is the overturning of his criminal
conviction and his release from confinement.

Notwithstanding, “[w]hen

a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is
entitled

to

immediate

release

or

a

speedier

release

from

that

imprisonment, his sole federal remedy is a writ of habeas corpus.”
Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
Accordingly, the plaintiff in this case is limited to the filing of an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See Myers v. Michigan, 2010 WL 1507617 (W.D. Mich., April 14, 2010)
(holding that plaintiff, who claimed to be a “sovereign American ... but
not a United States citizen”, and who sought release from custody based
upon a purported “security agreement”, could obtain release only through
a writ of habeas corpus); Cottenham v. Michigan, 2010 WL 1254554 (W.D.
Mich., March 29, 2010) (same).

The plaintiff is further advised that,

should he wish to pursue such an application, he must first exhaust his
remedies through the courts of the State of Louisiana, and he must
include in his application all potential claims which he may have.
RECOMMENDATION
It is recommended that the plaintiff’s action be dismissed as

legally frivolous and for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915A, without prejudice to the
plaintiff’s right to seek habeas corpus relief under 28 U.S.C. § 2254.2
Signed in chambers in Baton Rouge, Louisiana, January 30, 2012.

MAGISTRATE JUDGE CHRISTINE NOLAND

2

The plaintiff is advised that 28 U.S.C. § 1915A(g) provides
that, “[i]n no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury.”