Smith et al v. Cassidy

Filing 15

RULING: The 6 Motion to Dismiss by Senator Bill Cassidy is GRANTED. Plaintiffs' suit is dismissed with prejudice in its entirety as to all Defendants. The Court exercises supplemental jurisdiction over Plaintiffs' state law claims; however, because these claims are also without merit for the reasons set forth above, Plaintiffs' state law claims are likewise dismissed with prejudice. Judgment shall be entered accordingly. Signed by Judge Shelly D. Dick on 02/25/2015. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

EDWARD SMITH AND
JOHN HUDSON

CIVIL ACTION

VERSUS

NO. 14-647-SDD-SCR

BILLCASSIDY AND THE
UNITED STATES OF AMERICA
AS PRINCIPAL OF THE UNITED
STATES REPRESENTATIVE,
CONGRESSMAN

RULING
This matter is before the Court on the Motion to Dismiss filed by Defendant Bill
Cassidy(“Cassidy”).1 Plaintiffs Edward Smith and John Hudson (“Plaintiffs”), proceeding
pro se, have filed an Opposition2 to the motion. For the reasons which follow, the Court
finds that the motion should be granted.
I.

Factual Background
On October 14, 2014, Plaintiffs filed a Petition for Damages3 against the Honorable

Bill Cassidy, former United States Representative for the Sixth Congressional District of
Louisiana, now the current Senator for the State of Louisiana. On December 15, 2014,

1

Rec. Doc. No. 6.

2

Rec. Doc. No. 9.

3

Rec. Doc. No. 1.

Doc 25494

1

Plaintiffs filed an Amended and Supplemental Petition for Damages4 adding the United
States as a Defendant in this matter. Essentially, Plaintiffs claim that Cassidy has violated
their rights under the United States Constitution and a variety of federal and state statutes
for failing to report and investigate the Plaintiffs’ complaint that the United States Supreme
Court Justices denied writs to hear their cases because of the Justices’ alleged racial bias
against the Plaintiffs. Plaintiffs contend that the Supreme Court’s failure to grant their writ
of certiorari was an act of treason.5

Plaintiffs also allege they have reported this

misconduct to the Federal Bureau of Investigation (FBI) and the Department of Justice
(DOJ) to no avail.6 Plaintiffs complain that they sent several letters to Cassidy seeking his
representation in initiating articles of impeachment against the Supreme Court Justices,
and Cassidy has failed to contact the Judiciary Committee Chairman or in any way
investigate or carry out their requests.
Senator Cassidy moves to dismiss this action under Rules 12(b)(1), (5), & (6) of the
Federal Rules of Civil Procedure for, inter alia, lack of standing, sovereign immunity,
insufficient service of process, and failure to state a claim upon which relief may be
granted. The United States has not appeared in this matter, and the Clerk of Court recently
entered an Order7 granting Plaintiffs’ Motion for Entry of Default against the United States.

II.

Law and Analysis

4

Rec. Doc. No. 4.

5

Rec. Doc. No. 1, p. 2.

6

Id.

7

Rec. Doc. No. 12.

Doc 25494

2

A.

Motion to Dismiss under Rule 12(b)(1)

Cassidy argues that, because Plaintiffs have failed to establish Article III standing,
this Court lacks jurisdiction to hear this case. It is axiomatic that federal courts are courts
of limited jurisdiction.8 The burden of establishing federal jurisdiction rests on the party
invoking the federal forum.9 Pursuant to Rule 12(b)(1), “the district court has the power to
dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court's resolution
of disputed facts.”10 Furthermore, a district court should dismiss where “it appears certain
that the plaintiff cannot prove a plausible set of facts that establish subject-matter
jurisdiction.”11 “A case is properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the case.”12 Lack of subject
matter jurisdiction may be raised at any time.13
The United States Supreme Court instructs that, “the irreducible constitutional
minimum of standing contains three elements.”14 These elements are: “(1) an ‘injury in fact’

8

Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

9

Id.

10

Willoughby v. U.S. ex rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013) (citation and internal
quotation marks omitted).
11

Venable v. Louisiana Workers' Comp. Corp., 740 F.3d 937, 941(5th Cir. 2013) (citations omitted).

12

Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998) (citation omitted).

13

Giles v. Nylcare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir.1999).

14

Lujan v. Defenders of Wildlife, 504 U.S. at 560.

Doc 25494

3

that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection
between the injury and the conduct complained of; and (3) the likelihood that a favorable
decision will redress the injury.”15 “The party invoking federal jurisdiction bears the burden
of establishing these elements.”16 At the pleading stage, allegations of injury are liberally
construed.17
Plaintiffs claim they have standing because they have alleged that their
Constitutional rights have been violated. This claim is meritless for several reasons. First,
Plaintiffs do not have a Constitutional right to have their case heard by the United States
Supreme Court. Second, Plaintiffs’ dissatisfaction with Cassidy’s response, or lack thereof,
to their complaints is not the cause of their alleged injury, i.e., the denial of a writ of
certiorari by the Supreme Court.

Further, Plaintiffs fail to establish the element of

redressability because the Court lacks authority to direct a legislator to act in a particular
way, engage in specific legislative acts, or initiate investigations.18 Plaintiffs likewise lack
standing to bring criminal charges against Cassidy as “[i]is well-settled that the decision
whether to file criminal charges against an individual lies within the prosecutor's discretion,

15

Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir.2009) (citing Lujan, 504 U.S. at 560–61, 112 S.Ct.
2130).
16

Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

17

Id.(“[O]n a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are
necessary to support the claim’ [of standing].” (quoting Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 889, 110
S.Ct. 3177, 111 L.Ed.2d 695 (1990))).
18

Cf. Lewis v. D.C. Judiciary, 534 F.Supp.2d 84, 85 (D.D.C.2008)(separation-of-powers doctrine precludes
courts from compelling Congress to adopt certain rules); Orta Rivera v. Congress of U.S., 338 F.Supp.2d 272,
279 (D.P.R.2004)(Court lacks authority to order Congress to take legislative action on granting Puerto Rico
statehood or independence); Trimble v. Johnston, 173 F.Supp. 651, 653 (D.D.C.1959) (“[T]he Federal courts
may not issue an injunction or a writ of mandamus against the Congress”).

Doc 25494

4

and private citizens do not have a constitutional right to compel criminal prosecution.”19
Thus, dismissal is proper under Rule 12(b)(1).
B.

Motion to Dismiss under Rule 12(b)(6)

When a court considers a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), “all well-pleaded facts are viewed in the light most
favorable to the plaintiff, but plaintiffs must allege facts that support the elements of the
cause of action in order to make out a valid claim.”20 “To avoid dismissal, a plaintiff must
plead sufficient facts to ‘state a claim to relief that is plausible on its face.’ ”21 “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”22 The court
“do[es] not accept as true conclusory allegations, unwarranted factual inferences, or legal
conclusions.”23

Furthermore, “[a] complaint does not ‘suffice if it tenders “naked

assertion[s]’ devoid of ‘further factual enhancement.’”24 The Court is also cognizant that it

19

Lewis v. Jindal, 368 F. App’x 613, 614 (5 th Cir. 2010)((citing United States v. Batchelder, 442 U.S. 114,
124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (discussing prosecutorial discretion); Linda R.S. v. Richard D., 410
U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) (finding that a citizen lacks standard to contest
prosecutorial policies “when he himself is neither prosecuted nor threatened with prosecution”) (citations
omitted); see also Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.1990) (“Contrary to Oliber's contention, he does
not have a constitutional right to have someone criminally prosecuted.”)).
20

City of Clinton v. Pilgrim's Pride Corp., 632 F.3d 148, 152–53 (5th Cir.2010).

21

Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
22

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)).

23

Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.2005).

24
Wilson v. Kirby Corporation, 2012 WL 1565415 (E.D. La. 5/1/12), quoting Ashcroft, 556 U.S. at 677, 129
S.Ct. at 1949).

Doc 25494

5

must “liberally construe the briefs of pro se litigants and apply less stringent standards to
parties proceeding pro se than to parties represented by counsel.”25
The Court finds that Plaintiffs’ suit is also subject to dismissal because they fail to
state a claim upon which relief may be granted.

Plaintiffs’ suit is based on their

dissatisfaction with then-Congressman Cassidy’s response to their complaints about the
Supreme Court Justices and requests for impeachment proceedings. Plaintiffs contend
their Constitutional rights have been violated by Cassidy’s failure to protect their rights to
be heard by the Supreme Court. However, the jurisprudence is clear that a “Plaintiff has
no constitutional right to have [his] Congressman make particular decisions or take
particular actions.”26
For example, in Liao v. Ashcroft,27 the plaintiff brought suit against various parties,
including a judge and a United States Representative. The court granted Representative
Smith’s motion to dismiss finding as follows:
Because the claims asserted against Representative Smith are predicated
on his failure to take action or respond to Liao's request for assistance,
dismissal of these claims is appropriate. Liao's allegations, even if true, do
not arise to the level of an actionable wrong. A member of Congress' refusal
to assist a constituent in response to the constituent's request for help does
not create a cognizable claim. See Richards v. Harper, 864 F.2d 85, 88 (9th
Cir.1988) (affirming district court finding that a constituent is not entitled to
25

Franklin v. City of Slidell, 936 F.Supp.2d 691, 697, n. 2 (E.D. La. 2013)(quoting Smith v. Lonestar Constr.
Co., Inc., 452 F. App’x 475, 476 (5th Cir. 2011)).
26

Adams v. Richardson, 871 F.Supp. 43, 45 (D.D.C. 1994). See also Lance v.Coffman, 549 U.S. 437, 439
(2007)(reaffirming “lengthy pedigree” of Supreme Court’s refusal to “serve as a forum for general grievances”
about government); Newell v. Brown, 981 F.2d 880, 887 (6th Cir.1992) (upholding dismissal of claim against
Congressman arising out of service to constituent, stating that “[f]or the federal judiciary to subject members
of Congress to liability for simply doing their jobs would be unthinkable”), cert denied, 510 U.S. 842 (1993).
27

No. 08-2776 PJH, 2009 WL 1066302 (N.D. Cal. Apr. 21, 2009).

Doc 25494

6

sue for damages simply because his or her representative fails to perform
according to the constituent's wishes); Craft v. McNulty, 875 F.Supp. 121,
124 (N.D.N.Y.1995) (finding that fact that defendant Congressman “failed to
follow-up on the alleged wrongdoings of an Internal Revenue Service
personnel is neither inappropriate nor actionable under the laws”); Adams v.
Richardson, 871 F.Supp. 43, 45 (D.D.C.1994) (finding that there is no
constitutional right to have a Congressman make particular decisions or take
particular actions; noting that a Congressman's decisions on when and how
to address his constituents were well within his legislative discretion and are
matters with which the courts should not become enmeshed). Accordingly,
the claims asserted against Representative Smith are dismissed for failure
to state a claim upon which relief can be granted.28
The same analysis and reasoning set forth in Laio is applicable to the claims before the
Court.
Plaintiffs’ suit is also barred by sovereign immunity. Cassidy has argued this
defense, and Plaintiffs have utterly failed to address it or present any legal exception to this
defense. “The United States, as sovereign, is immune from suit save as it consents to be
sued, and the terms of its consent to be sued in any court define that court's jurisdiction to
entertain the suit.”29

This immunity extends to Members of Congress, such as

Congressman (now Senator) Cassidy, when sued in an official capacity.30 Sovereign
immunity precludes the exercise of jurisdiction over Congressman (now Senator) Cassidy
absent an “unequivocally expressed” waiver of that immunity.31 Thus, dismissal is also
appropriate under the doctrine of sovereign immunity.

28

Id. at * 5.

29

United States v. Sherwood, 312 U.S. 584, 586 (1941).

30

See Keener v. Congress, 467 F.2d 952, 953 (5th Cir.1972).

31

United States v. King, 395 U.S. 1, 4 (1969).

Doc 25494

7

C.

Motion to Dismiss under 28 U.S.C. § 1915

Cassidy also moves to dismiss Plaintiffs’ case based on its alleged frivolous nature
pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiffs similarly failed to substantively respond
to this argument. Section 1915(e)(2) provides for dismissal if the Court finds the complaint
“frivolous or malicious” or if it “fails to state a claim upon which relief may be granted.” A
claim is frivolous if it “lacks an arguable basis either in law or in fact.”32 A claim lacks an
arguable basis in law when it is “based on an indisputably meritless legal theory.”33 A claim
lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.”34
Courts
may dismiss a claim as factually frivolous only if the facts alleged are clearly
baseless, a category encompassing allegations that are fanciful, fantastic,
and delusional. As those words suggest, a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially noticeable facts available
to contradict them.35
Based on the foregoing legal authority, the Court finds that Plaintiffs’ claims are
frivolous, as that term is defined above. The summary of Plaintiffs’ claims presented above
reflect that they are “fanciful, delusional, or fantastic.” These allegations are irrational and
have no legal merit whatsoever.

32

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

33

Id. at 327.

34

Id. at 327-28.

35
Denton v. Hernandez, 504 U.S. 25, 32–33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (citations and internal
quotation marks omitted).

Doc 25494

8

For all of the reasons36 set forth by Cassidy, his Motion to Dismiss is GRANTED.
D.

Preliminary Default against the United States

As set forth above, the Plaintiffs moved for the Clerk’s Entry of Default because the
United States has failed to respond or appear in this matter. The Clerk of Court entered
an Order of default on February 24, 2015. Because the Court’s Ruling applies with equal
force to Plaintiffs’ claims against the United States, and the Court lacks subject matter
jurisdiction over the United States in this matter, the Court hereby VACATES the Order of
preliminary default. No default judgment could ever be confirmed in this matter as
Plaintiffs’ case has no factual or legal basis.

III.

CONCLUSION

36

The Court has considered all arguments of the parties whether or not specifically addressed herein. To the
extent that the Court failed to address in particular an argument by Cassidy in his Motion to Dismiss, the Court
notes that each and every argument put forth by Cassidy has merit and is not rebutted by Plaintiffs’
Opposition.

Doc 25494

9

For the reasons set forth above, the Motion to Dismiss37 by Senator Bill Cassidy is
GRANTED. Plaintiffs’ suit is dismissed with prejudice in its entirety as to all Defendants.
The Court exercises supplemental jurisdiction38 over Plaintiffs’ state law claims; however,
because these claims are also without merit for the reasons set forth above, Plaintiffs’ state
law claims are likewise dismissed with prejudice.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on February 25, 2015.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

37

38

Rec. Doc. No. 6.
See 28 U.S.C. § 1367.

Doc 25494

10