Nelson v. Wilson et al

Filing 5

ORDER SUMMARILY DISMISSING THE 1 COMPLAINT. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIE FRANK NELSON,
Plaintiff,
CASE NO. 15-11075
v.
HONORABLE ARTHUR J. TARNOW
JOHN HENRY WILSON, LARI ZEKA,
ELENA SHORT, and LARRY WILLIAMS,
Defendants.
_____________________________________/
ORDER SUMMARILY DISMISSING THE COMPLAINT
I. Introduction
This matter has come before the Court on a pro se civil rights complaint under 42
U.S.C. § 1983. Plaintiff Willie Frank Nelson is a prisoner at the Bare Hill Correctional
Facility in Malone, New York. The defendants apparently are former employees of a
Michigan business purporting to provide legal research or legal representation for
prisoners needing help with criminal appeals or other post-conviction matters. Plaintiff
alleges that, in 2008, he began corresponding with the defendants about having an
attorney assigned to help him with legal issues. Apparently before he could sign a
contract, his mother paid the firm $600.00. The firm stopped communicating with
Plaintiff and his mother when they asked for a refund of their money. An exhibit to the
complaint indicates that the firm is a fraudulent business, that the defendants do not have
law degrees or licenses, and that the United States Attorney’s Office for the Eastern

District of Michigan has prosecuted defendants Wilson and Zeka and obtained guilty
pleas from them. See Compl., Ex. A.
Plaintiff claims that the defendants intentionally sought to deceive him by offering
to provide him with legal assistance even though they were not licensed to do so. He
seeks money damages for alleged violations of his constitutional right to due process.
The complaint also purports to raise claims under the diversity-of-citizenship statute,
criminal statutes, and the Racketeer Influenced and Corrupt Organizations Act (RICO).
II. Legal Standard
The Prison Litigation Reform Act of 1996 requires federal district courts to screen
a prisoner’s complaint and dismiss the complaint if it is frivolous, malicious, fails to state
a claim for which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Flanory v. Bonn, 604
F.3d 249, 252 (6th Cir. 2010); Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001).
A complaint is frivolous if it lacks an arguable basis in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
“In determining whether a prisoner has failed to state a claim, [courts] construe his
complaint in the light most favorable to him, accept his factual allegations as true, and
determine whether he can prove any set of facts that would entitle him to relief.” HarbinBey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). While a complaint “does not need
detailed factual allegations,” the “[f]actual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all the allegations in the
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complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (footnote and citations omitted). In other words, “a complaint must
contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). “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.” Id.
III. Analysis
A. Color of Law
As noted above, Plaintiff brings his action 42 U.S.C. § 1983. “Section 1983
provides a cause of action against any person who deprives an individual of federally
guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 132 S.Ct. 1657, 1661
(2012) (citing § 1983). “Anyone whose conduct is ‘fairly attributable to the state’ can be
sued as a state actor under § 1983.” Id. (citing Lugar v. Edmonson Oil Co., 457 U.S. 922,
937 (1982)).
The complaint indicates that the named defendants were conducting a business
during the time in question. Although Plaintiff has not said what role John Henry Wilson
or Lari Zeka played in the business, he alleges that Elena Short was an administrative
assistant, and that Larry Williams was a research analyst. Nothing in the complaint
suggests that the defendants were state actors or that their conduct was “fairly attributable
to the State.” Consequently, even assuming that Plaintiff has been deprived of a federally
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guaranteed right, he has failed to prove that the defendants acted under color of law, and
his § 1983 claim fails.
B. Diversity of Citizenship
In addition to seeking relief under § 1983, Plaintiff attempts to bring his action
under 28 U.S.C. § 1332, the diversity-of-citizenship statute. “In a federal diversity action,
the amount alleged in the complaint will suffice unless it appears to a legal certainty that
the plaintiff in good faith cannot claim the jurisdictional amount.” Klepper v. First
American Bank, 916 F.2d 337, 340 (6th Cir. 1990) (citing St. Paul Mercury Indem. Co. v.
Red Cab Co., 303 U.S. 283, 288–89 (1938)). And, “[u]nder Michigan law, . . . punitive
or exemplary damages cannot be awarded where actual damages are sufficient to make
the plaintiff whole.” Thompson v. Paasche, 950 F.2d 306, 314 (6th Cir. 1991) (citing
Hayes-Albion v. Kuberski, 421 Mich. 170 (1984)).
Plaintiff seeks $150,950.00 in damages plus an unspecified amount for mental
anguish, pain, and suffering. Of the $150,950.00, $600.00 is intended to compensate
Plaintiff for the amount that the defendants took from him or his mother without
providing any services in return; $350.00 is requested for court costs; and $150,000.00 is
sought for punitive damages. The Court finds that $600.00 would be sufficient to make
Plaintiff whole and that Plaintiff cannot in good faith claim $150,000.00 or even half that
amount in punitive damages. Absent the request for $150,000.00 in punitive damages,
the actual amount in controversy is $600.00, which is well below the statutory threshold
of $75,000 for diversity actions, exclusive of interest and costs. See 28 U.S.C. § 1332(a).
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Thus, Plaintiff’s diversity-of-citizenship claim fails.
C. Criminal Charges
To the extent Plaintiff is trying to bring a criminal action against the defendants,
his complaint is frivolous because a private individual cannot prosecute a criminal action
in federal court, nor compel the state or federal government to investigate or prosecute an
alleged crime. Mikhail v. Kahn, 991 F. Supp.2d 596, 634-35 (E.D. Pa. 2014), aff’d, 572
F. App’x 68 (3d Cir. 2014). “[E]ven when individuals are wronged in a manner
cognizable under criminal law, they ‘do not have a constitutional right to the prosecution
of alleged criminals.’ ” Id. at 637 (quoting Capogrosso v. Supreme Court of N.J., 588
F.3d 180, 184 (3rd Cir. 2009)). Thus, Plaintiff’s attempt to hold the defendants
criminally liable fails.
D. The Civil RICO Claim
Plaintiff also seeks to hold the defendants liable under RICO. Under 18 U.S.C. §
1964(c), “[a]ny person injured in his business or property by reason of a violation of
section 1962 of this chapter may sue therefor in any appropriate United States district
court and shall recover threefold the damages he sustains and the cost of the suit . . . .”
But one limitation in § 1964(c) “is the requirement that a plaintiff be ‘injured in his
business or property’ in order to bring a civil action.” Jackson v. Sedgwick Claims
Management Serv., Inc., 731 F.3d 556, 563-64 (6th Cir. 2013), cert. denied, 134 S. Ct.
2133 (2014). Plaintiff’s RICO claim fails because he has not showed an injury to any
business or property. Sharp v. Ingham Cnty., 23 F. App’x 496, 499 (6th Cir. 2001);
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accord Lee v. Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004); Ziegler v.
McGinnis, 32 F. App’x 697, 699 (6th Cir. 2002). And even though Plaintiff seeks
unspecified damages for mental anguish, pain, and suffering, “[r]ecovery for physical
injury or mental suffering is not allowed under civil RICO because it is not an injury to
business or property.” Fleischhauer v. Feltner, 879 F.2d 1290, 1300 (6th Cir. 1989).
IV. Conclusion
For the reasons given above, Plaintiff’s allegations lack an arguable basis in law
and fail to state a plausible claim for which relief may be granted. Accordingly, the Court
summarily DISMISSES the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii)
and 1915A(b)(1). An appeal from this order would be frivolous and could not be taken in
good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445
(1962).
IT IS SO ORDERED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: April 30, 2015
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on April 30, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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