Ajama Nefertiti v. Powelson et al

Filing 5

OPINION AND ORDER Granting IFP Status, Dismissing 1 Complaint, Denying as Moot 3 Plaintiff's Ex-Parte Emergency TRO and Motion to Stay. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DR. NANA OSUNDARA
AJAMU NEFERTITI EL,
Case No. 15-10107
Plaintiff,
v.

Paul D. Borman
United States District Judge

MARTIN POWELSON, ET AL..
Defendants.
______________________________/

OPINION AND ORDER:
(1) GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYMENT OF FEES OR COSTS (ECF NO. 2);
(2) DISMISSING THE COMPLAINT PURSUANT TO
28 U.S.C. § 1915(e)(2)(B) (ECF NO. 1);
(3) DENYING AS MOOT PLAINTIFF’S “EX PARTE EMERGENCY TRO AND MOTION
TO STAY” (ECF NO. 3)

The matter now before the Court is Plaintiff Dr. Nana Osundara Ajamu Nefertiti El’s
(“Plaintiff”) “Application to proceed in District Court without Prepayment of Fees or Costs”. (ECF
No. 2).
Plaintiff’s present action was filed on January 12, 2015 against Martin Powelson, Gary
Segatti & Associates, PLLC, and Wayne County Treasurer (the foreclosure governmental unit).
(ECF No. 1). Plaintiff’s extremely brief complaint is difficult to decipher. To the extent this Court
can comprehend the allegations asserted, Plaintiff appears to seek to quiet the title of a property
against the named Defendants. Plaintiff’s substantive complaint sets forth that she:
ALLEGES A DEFECTIVE WARRANT DEED ACQUIRED BY DEFENDANT(1)
AND ISSUED BY STATE OF MICHIGAN – WAYNE COUNTY TREASURER
(FGU) FORECLOSURE GOVERNMENTAL UNIT IN ALLEGED AND

AGGRAVATED DENIAL OF DUE PROCESS, and applicable due diligence at
(MCL) 600.2932; Act of 206, Sec. 211.78P(1)(2), LAND PATENT CLAIMS AND
CONSTITUTIONAL PROTECTIONS OF HOMESTEAD RIGHTS, INTER ALIA.
(ECF No. 1 at 5) (capitalization in original). Plaintiff also cites with no explanation that “Title 25
U.S.C. § 194, INDIAN LAND CLAIM” is a basis for the Court’s jurisdiction. (Id.). Finally,
Plaintiff states that she is seeking “THE EQUAL PROTECTION OF THE FEDERAL COURT, TO
UPHOLD THE RIGHTS OF AN INDIAN LAND HOLDER AND THE RIGHTS OF LAND
PATENT”.
In addition to the complaint and application to proceed without prepayment of fees, Plaintiff
filed an “EXPARTE EMERGENCY TRO and MOTION TO STAY” a state court judgment of
eviction on February 3, 2015. (ECF No. 3). The Court notes that this motion requests that the Court
stay a “judgment for eviction in favor of Defendant Martin Powelson” “pending the outcome” of this
Federal action. (ECF No. 3 at 1-2). The judgment of eviction that Plaintiff seeks to stay involves
Plaintiff’s residence, 17567 Monica Street, Detroit, MI. (ECF No. 3 at 1). Reading the filings in
this action together, it appears that the property at issue in this action is most likely that same
property, Plaintiff’s residence on Monica Street in Detroit, Michigan.1

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Plaintiff did not indicate that there was a related state court case in her initial filings.
(See ECF No. 1). However, her complaint references a “defective title exhibit[]” that is
described as a “notice of foreclosure judgment: 11/07/2014” but is not attached nor is the
property at issued referenced. Further, her Emergency Motion for TRO refers to a “matter
against the 36th District Court of the State of Michigan’s judgment for eviction in favor of
Defendant Martin Powelson”. (ECF No. 3 at 1). Finally, Plaintiff filed an “Affidavit of No
Jurisdiction” which appears to be a filing from case number 14332693 in 36th District Court in
the State of Michigan and provides in part that “[t]his case is out of jurisdiction of 36th District
Court. The defendant is an aboriginal, indigenous, Native American and therefore is not a
tenant.” (ECF No. 4 at 1).
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I.

Proceeding without Prepayment of Fees
Pursuant to 28 U.S.C. § 1915(a)(1), a court may allow commencement of a civil action

without the prepayment of fees or costs if the applicant submits an affidavit demonstrating that he
or she is “unable to pay such fees or give security therefor.” In the instant action, Plaintiff has
supplied an affidavit which appears to set forth that she is unemployed, has no savings or current
income, and notes that “League of Indian Nations of North America Fees Exempt”. (ECF No. 2).
Plaintiff also indicates that she does not own any property. (ECF No. 2 at 2). Based on this
information the Court will grant Plaintiff’s Application to Proceed without Prepayment of Fees or
Costs as it appears that she is without income or assets.
Pursuant to 28 U.S.C. § 1915 this Court is also required to dismiss a complaint filed without
prepayment of fees that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §
1915(e)(2)(B). The United States Court of Appeals for the Sixth Circuit has explained:
Unlike prisoner cases, complaints by non-prisoners are not subject to the screening
process required by § 1915A. However, the district court must still screen the
complaint under § 1915(e)(2). ... Section 1915(e)(2) provides us with the ability to
screen these, as well as prisoner cases that satisfy the requirements of the section.
The screening must occur even before process is served or the individual has had an
opportunity to amend the complaint. The complaint must be dismissed if it falls
within the requirements of § 1915(e)(2) when filed.
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997) (overruled on other grounds by Jones
v. Bock, 549 U.S. 199 (2007)). An action must be dismissed as frivolous when “it lacks an arguable
basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under § 1915(e),
courts may dismiss a complaint not only when it is “based on an indisputably meritless legal theory”
but also when the “factual contentions [on which it relies] are clearly baseless.” Anson v. Corr.

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Corp. of Am., 529 F. App’x 558, 559 (6th Cir. 2013) (quoting Neitzke, 490 U.S. at 327). A
complaint that is legally frivolous “ipso facto” fails to state a claim upon which relief can be granted.
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010) (citing Neitzke, 490 U.S. at 328-29).
Dismissals for failure to state a claim pursuant to § 1915e(2) “are governed by the same
standards as dismissals for failure to state a claim under Rule 12(b)(6).” Moniz v. Cox, 512 F. App’x
495, 497 (citing Hill, 630 F.3d at 470-71).

Accordingly, a “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Moniz, 512
F. App’x at 496 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see 28 U.S.C. § 1915(e)(2)(ii)
(providing that a court “shall” dismiss the case at any time if the court determines that the action
“fails to state a claim on which relief may be granted”).
In applying these standards, the Court must liberally construe the pro se litigant’s complaint
and hold it to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,
404 U.S. 519, 520 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (finding “the
allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal
pleadings drafted by lawyers in the sense that a pro se complaint will be liberally construed in
determining whether it fails to state a claim upon which relief could be granted.”).
II.

Failure to State a Claim
The Court finds that Plaintiff’s complaint has failed to set forth a claim upon which relief

can be granted. The Federal Rules of Civil Procedures require that a plaintiff must provide “a short
and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a).
This Court recognizes, as stated above, that Plaintiff’s pro se pleadings must be “liberally
construed”, however, “[a]lthough a complaint need not contain detailed factual allegations, it does

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require more than ‘labels and conclusions’ or formulaic recitation of the elements of a cause of
action.” Moniz, 512 F. App’x at 496 (quoting Reily v. Vadlamudi, 680 F.3d 617, 622 (6th Cir.
2012)). Indeed, a complaint must “‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In this action, Plaintiff’s complaint is very brief and
appears to be lists of unattached exhibits, references to statutes, and a complete lack of factual
allegations or explanation to support or unite these lists and citations.
Specifically, Plaintiff’s complaint references a federal statute, 25 U.S.C. § 194 which
provides that “[i]n all trials about the right of property in which an Indian may be a party on one
side, and white person on the other, the burden of proof shall rest upon the white person, whenever
the Indian shall make out a presumption of title in himself from the fact of previous possession or
ownership.” However, there is nothing in this statute that provides plaintiff a federal right of action.
Plaintiff also references a Michigan statute, § 600.2932, which allows any person who claims “any
right” in or interest in land to bring an action in the Michigan circuit courts against a person who
claims an inconsistent interest in that same land. MICH. COMP. LAWS § 600.2932 (1). However,
Plaintiff’s complaint does not indicate what interest, if any, Plaintiff has in any property. Further,
and to the extent Plaintiff references a defective deed, Plaintiff has similarly failed to allege any facts
regarding the deed or specify how the deed was acquired “in denial of due process”. (ECF No. 1
at 5). Finally, Plaintiff cites the Michigan Property Tax Act 206 of 1893, Mich. Comp. Laws §§
211.78p and 211.78b “Notice Provisions”. (ECF No. 1 at 5). Section 211.78p provides that when
a property is transferred to federally recognized Indian tribe members or entities as a result of
delinquent taxes, “the taxes that were returned as delinquent and that were due on that property at

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the time of that sale, transfer, or conveyance are a personal liability of the transferor to whom the
delinquent taxes were originally billed.” MICH. COMP. LAWS § 211.78p(1). Section 211.78b, sets
forth the notice provisions regarding the return of delinquent taxes including to whom a notice must
be sent. Again, Plaintiff’s complaint does not set forth any facts that would enlighten the
Defendants as to how these statutes relate to Plaintiff.2
Therefore, even reading all of Plaintiff’s pleadings, including her Emergency TRO and her
“Affidavit of No Jurisdiction” together and under the most liberal construction, Plaintiff has failed
to give the Defendants notice of the “grounds upon which [her claim] rests.” Indeed, Plaintiff’s
pleadings fail to give the Defendants any direction as to what claims she is attempting to assert
because her complaint is completely bereft of factual allegations. Rather, the complaint sets forth
legal citations and lists of unattached exhibits, which amounts to at most “labels and conclusions”.
Therefore, the Court finds that Plaintiff’s complaint fails to state a claim because it fails to provide
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010) ((citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).

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Plaintiff also appears to make passing references to the Indian Civil Rights Act of 1968
and 22 U.S.C. § 7102 et seq., known as the Trafficking Victims Protection Act.
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III.

CONCLUSION
Accordingly, the Court GRANTS Plaintiff’s Application to Proceed without Prepayment of

Fees or Costs (ECF No. 2); DISMISSES Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)
(ECF No. 1); and DENIES as MOOT Plaintiff’s “EXPARTE EMERGENCY TRO and MOTION
TO STAY” (ECF No. 3).
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: February 4, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on February 4, 2015.

s/Deborah Tofil
Case Manager

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