Fowler v. Berrien County Probate Court

Filing 9

Judge Rya W. Zobel: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 2) is ALLOWED; Plaintiff's Motion Subpoena Felony Complaint (Docket No. 3) is DENIED; and This action is DISMISSED in its entirety. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DAVID LIONEL FOWLER
v.

CIVIL ACTION NO. 12-11828-RWZ

BERRIEN COUNTY PROBATE COURT.
MEMORANDUM AND ORDER
November 26, 2012
ZOBEL, D.J.
BACKGROUND
On October 2, 2012, plaintiff David Lionel Fowler, (“Fowler”), currently residing at
the Massachusetts New England Center for Homeless Veterans in Boston,
Massachusetts, filed a skeletal self-prepared complaint against the Berrien County
Probate Court in St. Joseph, Michigan.1 The allegations are unintelligible. Fowler
states that:
Plaintiff requests the jurisdiction over thic [sic] case pursuant to 28 U.S.C.
1332. Reasons Non-Payment 6 month Default on Federal Court Demand
Filed 03/23/2012 Defendant Caused Detrimental Harm Causing Plaintiff to
Be Homeless.
Compl. (Docket No. 1 at 1, ¶ 4). The Civil Cover Sheet attached to the Complaint lists
the nature of suit as, inter alia, civil rights, RICO, and Recovery of Defaulted Student
Loans. In the line designated for the cause of action, Fowler wrote “Non-Payment on
Demand; Recovery of Defaulted Non-Payment Demand.” Civil Cover Sheet (Docket
No. 1). He demands $110,000,000.00.
This civil action presents claims virtually identical to a recently dismissed case in

1

This action originally was assigned to Magistrate Judge Bowler. On November 2,
2012, the action was reassigned to the undersigned.

this Court. See Fowler v. Social Security Administration, Civil Action No. 12-11826-RGS
(closed November 1, 2012). In turn, that earlier case was a refiling of a case Fowler
previously filed in the District of Arizona (Phoenix Division), and then dismissed. See
Fowler v. Social Security Administration, et al., Civil Action No. 2:12-cv-00628-JAT.
From what can be gleaned, it appears that Fowler alleged that he was denied social
security benefits, in part, because the Berrien County Probate Court improperly
concealed records of his adoption. See id. (Order (Docket No. 18 at 1)).
This action also appears to be a re-filing of a lawsuit against the Berrien County
Probate Court, originally filed in the District of Arizona (Phoenix Division), which was
dismissed. See Fowler v. Berrien County Probate Court, et al., Civil Action No. 2:12-cv00630-MHB (filed March 23, 2012).2 In that action, Magistrate Judge Michelle H. Burns
granted Fowler in forma pauperis status and dismissed the original Complaint with leave
to amend. Fowler then filed an Amended Complaint, in which he alleged he was a
Michigan State Adoptee, and further alleged:
Berrien County Probate Court, under false pretense is in violation with
Michigan State ordinance rules and laws enacted by municipal or county
government laws. They are also in violation of state adoption laws to felony
cover up a kidnapping. The foster mother, Margaret Wayne Fowler was
allowed to commit felony fraud by falsely presenting her name on the State
Department of Human Services birth certificate, as the biological parent.
Under false pretense, the foster mother, was also allowed to illegally change
the name (first, middle and last name) of the infant to illegally gain rights over
the child. The foster mother has NO legal rights or grounds as a biological
parent. This is clearly a kidnapping case that has to be handled within the
jurisdiction of the Federal Courts. The Berrien County Probate Court failed
to redirect and/or correct the criminal issue allowing the problem to occur.

2

In the action filed in the District of Arizona, Fowler sued both the Berrien County
Probate Court and the Jackson County Probate Court.
2

Id. (Docket No. 8 at 1). Along with the Amended Complaint, Fowler filed a Motion for
Judgment on the Pleadings, a Motion to Suppress/Motion for Subpoena, and a Motion
to Amend the Complaint. The Court again found that Fowler’s Amended Complaint
failed to comport with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. Specifically, the Court found the pleading to be one unintelligible paragraph
which failed to provide any plausible claim for relief. The case was dismissed on May
15, 2012. See Order (Docket No. 11 at 3). Thereafter, Fowler filed several motions,
including motions to reconsider and a motion to transfer the case. All motions were
denied.
Accompanying the instant Complaint is a document entitled “Motion Subpoena
Felony Complaint” (Docket No. 3), directed to Chief Judge Mark L. Wolf. Plaintiff
therein requests that warrants issue against the Berrien County Probate Court and
others for “non-payment on federal court demand that concludes final action and legal
provisions ordered by the federal court district ARIZONA. Assigned state federal judge
Honorable JAMES A. TEILBORG.” Motion (Docket No. 3 at 1). Additionally, Fowler
alleges that the Berrien County Probate Court (and unnamed others) are in “felony
negligence tort-criminal and civil violation reasons ignoring a federal court order failing
to meet complaint within a specified time period.” Id. He claims the Berrien County
Probate Court has purposely violated his civil rights because he is a 19-year veteran of
the U.S. Army. He seeks both payment from the Berrien County Probate Court, and
others, and the institution of felony charges against it. Apart from the name of the
Defendant, the allegations in this motion also are virtually identical to the one filed (and
later denied) in Fowler v. Social Security Administration, Civil Action No. 12-118263

RGS.
In addition to the Motion Subpoena Felony Complaint, Fowler filed a Notice of
Default (Docket No. 4) for execution and issuance by the Clerk of Court. Attached to
that pleading was a proposed Default Judgment in which he seeks $110,000,00.00.
Finally, along with these pleadings, Fowler filed a Motion for Leave to Proceed in forma
pauperis (Docket No. 2).
DISCUSSION
I.

The Motion for Leave to Proceed In Forma Pauperis
Upon review of Fowler’s financial disclosures indicating that he has no assets or

income, this court finds that lacks the $350.00 to pay the filing fee for civil actions.
Accordingly, his Motion for Leave to Proceed in forma pauperis (Docket No. 2) is
ALLOWED.
II.

Preliminary Screening of the Complaint
Because Fowler is proceeding in forma pauperis, his Complaint is subject to

screening under 28 U.S.C. § 1915(e)(2).3 Further, in addition to the statutory screening
requirements under § 1915, the Court has an independent obligation to inquire, sua sponte,
into its subject matter jurisdiction.4 In connection with this preliminary screening, Fowler’s

3

This statute authorizes federal courts to dismiss actions in which a plaintiff seeks to
proceed without prepayment of fees if the action is malicious, frivolous, fails to state a
claim upon which relief may be granted, or seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915(e)(2); Denton v. Hernandez,
504 U.S. 25, 32-33 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
4

See McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004); Fed. R. Civ. P. 12(h)(3) (“If the
court determines ... it lacks subject matter jurisdiction, the court must dismiss the
action.”). See also In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988) (“It is
too elementary to warrant citation of authority that a court has an obligation to inquire
4

pro se complaint is construed generously. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines
v. Kerner, 404 U.S. 519, 520 (1972); Instituto de Educacion Universal Corp. v. U.S. Dept.
of Education, 209 F.3d 18, 23 (1st Cir. 2000). Even under a broad reading, however, the
Complaint fails to pass muster.
III.

Failure to Comply With Fed. R. Civ. P. 8
The Complaint fails to comport with the pleading requirements of Rule 8 of the

Federal Rules of Civil Procedure. Rule 8(a) requires a plaintiff to include in the
complaint, inter alia, “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This statement must "‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests,’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)); see Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir.
2005). It must afford the defendant(s) a “[‘]meaningful opportunity to mount a defense,’”
Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir. 2004) (quoting Rodríguez
v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)). See also
Redondo-Borges v. U.S. Dept. of Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir.
2005). “In a civil rights action as in any other action . . . , the complaint should at least
set forth minimal facts as to who did what to whom, when, where, and why.”
Educadores Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004).
Here, Fowler’s sparse Complaint fails to set forth plausible claims in accordance
with Rule 8. Although he demands payment from the Berrien County Probate Court, he

sua sponte into its subject matter jurisdiction, and to proceed no further if such
jurisdiction is wanting.”).
5

fails to set forth the underlying factual basis for the demand. It appears that he is
asserting that he obtained a judgment from the Arizona District Court; however, the
public records (PACER) do not indicate that to be the case. In any event, he fails to set
forth the “who, what, where, when, and why” type information necessary to state a claim
upon which relief may be granted.5 Even considering the attachments submitted and
other pleadings filed in the District of Arizona, this Court cannot discern any cognizable
claim against the Berrien County Probate Court.6
Notwithstanding that ordinarily, this Court would permit a pro se litigant an
opportunity to cure the pleading deficiencies, Fowler has had the opportunity to do so in
the District of Arizona case. However, given Fowler’s litigational history, further
opportunity to cure would be futile.

5

Although Fowler references “all defendants” in his motion, he fails to set forth any
claims against any other defendants, and it is unclear to whom he is referring. As pled,
this Court considers only the Berrien County Probate Court to be a Defendant in this
case.
6

As an additional matter, Fowler alleges diversity jurisdiction over this action, based on
violations of Michigan law, but he fails to assert the state claims in any understandable
fashion. He also fails to set forth a basis for the amount in controversy. It is noted that
in his case before Judge Stearns, he alleged the amount in controversy was
$50,000.000.00, based on identical claims asserted here. In light of this, the Court
questions the bona fides of the amount in controversy for jurisdictional purposes.
Further, Fowler alleges civil rights violations by the Defendant, but fails to set forth any
basis for civil rights claims based on his alleged violations of state law. In any case, the
Berrien County Probate Court is not a “person” for purposes of civil rights actions under
42 U.S.C. § 1983 (the vehicle for generally asserting civil rights violations by a state
actor). “[C]ivil rights actions under 42 U.S.C. § 1983 may only be brought against a
‘person,’ and courts and judicial districts are clearly not persons within the meaning of
the statute.” Howell v. Muskegon Co. Courts, 2012 WL 1952385, *1 (W.D. Mich. May
30, 2012) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).
6

IV.

The Berrien County Probate Court is Entitled to Sovereign Immunity
Fowler’s Complaint further suffers from a fundamental legal impediment

warranting sua sponte dismissal. Specifically, Fowler may not recover damages against
the Berrien County Probate Court because it is entitled to sovereign immunity under the
Eleventh Amendment, and there is no basis to find that a waiver of sovereign immunity
exists in these circumstances. See Alabama v. Pugh, 438 U.S. 781, 782 (1978);
O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir.1993). “The State of Michigan has not
has not consented to civil rights suits in federal court.” Howell v. Muskegon Co. Courts,
2012 WL 1952385 at *1 (citing Abick v. Michigan, 803 F.2d 874, 877 (6th Cir.1986)).
“The Sixth Circuit squarely has held that suits against Michigan courts are barred by
Eleventh Amendment sovereign immunity.” Id. citing Abick, 803 F.2d at 877.
Accordingly, this action is DISMISSED based on Eleventh Amendment immunity
and pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and (iii) (failure to state a claim upon
which relief may be granted and suit against a defendant who is immune).
V.

The Motion Subpoena Felony Complaint
A private citizen, such as Fowler, lacks a judicially cognizable interest in the

federal prosecution or non-prosecution of another. See, e.g., Linda R.S. v. Richard D.,
410 U.S. 614, 619 (1973); accord Nieves-Ramos v. Gonzalez, 737 F. Supp. 727, 728
(D. P.R. 1990) (same).7
7

Moreover, section 547 of title 28 states, in relevant part, that “Except as otherwise
provided by law, each United States attorney, within his district, shall – (1) prosecute
for all offenses against the United States.” 28 U.S.C. § 547 (1). Thus, Fowler does not
have standing to bring a criminal action in federal court because no statute authorizes
him to do so. Kennan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964) (per curiam);
accord Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam) (stating that only the
7

Thus, the Motion Subpoena Felony Complaint is DENIED.
VI.

Improper Venue and Lack of Personal Jurisdiction
As a final matter, while this action is being dismissed for the reasons set forth

above, it is appropriate to note that Fowler’s Complaint raises issues of lack of personal
jurisdiction. Fowler’s claims allegedly arise under Michigan law. It is clear from the face
of the Complaint that this Court lacks personal jurisdiction over the Berrien County
Probate Court and/or any of its employees because there is no “purposeful availment”
of the privilege of conducting activities in the Commonwealth of Massachusetts. Thus,
there are insufficient minimum contacts to meet the due process requirements and to
comport with traditional notions of fair play and substantial justice for this Court to
exercise personal jurisdiction over any Michigan parties.
CONCLUSION
Based on the above, it is hereby Ordered that:
1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis (Docket No. 2) is
ALLOWED;

2.

Plaintiff’s Motion Subpoena Felony Complaint (Docket No. 3) is DENIED; and

3.

This action is DISMISSED in its entirety.

SO ORDERED.

/s/ Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

United States as prosecutor can bring a complaint under 18 U.S.C. §§ 241-242); Stone
v. Warfield, 184 F.R.D. 553, 555 (D. Md. 1999) (stating that individual citizens have no
private right of action to institute federal criminal prosecutions); 28 U.S.C. § 516
(conduct of litigation in which the United States is a party is reserved to officers of the
Department of Justice, under the direction of the Attorney General).
8