Nelson v. Wilson et al

Filing 9

ORDER denying 7 Motion for Leave to File an Amended Complaint, and denying 8 Amended Motion for Leave to File and Amended 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
HONORABLE ARTHUR J. TARNOW

v.
JOHN HENRY WILSON, LARI ZEKA,
ELENA SHORT, and LARRY WILLIAMS,
Defendants.
_____________________________________/

ORDER DENYING PLAINTIFF’S MOTIONS
FOR LEAVE TO FILE AN AMENDED COMPLAINT
(ECF Nos. 7 and 8)
I. Introduction
On March 20, 2015, plaintiff Willie Frank Nelson commenced this action by filing
a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is a state prisoner in
Malone, New York. His complaint and the attached exhibits indicated that the
defendants operated a fraudulent Michigan business that offered to provide legal
assistance to prisoners who needed help with criminal appeals or other post-conviction
matters. As a result of a federal prosecution related to the fraudulent business, two of the
defendants (John Henry Wilson and Lari Zeka) pleaded guilty to criminal conduct in
federal court.
Plaintiff alleged in his complaint that his mother paid the defendants $600.00, and
when he sought a refund of the money, the defendants stopped communicating with him.

Nelson v. Wilson, et al., No. 15‐11075
Plaintiff claimed that the defendants intentionally deceived him by offering to provide
him with legal assistance even though they were not licensed to do so. He sought money
damages for alleged violations of his constitutional right to due process. Plaintiff also
sought relief under the diversity-of-citizenship statute, and he attempted to hold the
defendants responsible under criminal statutes and the Racketeer Influenced and Corrupt
Organizations Act (RICO).
On April 30, 2015, the Court summarily dismissed the complaint under 28 U.S.C.
§§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(1), because it was frivolous and failed to state
a plausible claim for which relief could be granted. The Court stated that Plaintiff’s §
1983 claim failed to state a claim because the defendants were not state actors. The
Court also determined that it lacked jurisdiction under the diversity-of-citizenship statute,
because the actual amount in controversy was well below the statutory threshold for
diversity actions. Finally, the Court stated that Plaintiff had no authority to prosecute the
defendants or to sue them under RICO.
Now before the Court are Plaintiff’s motion for leave to amend his complaint and
his amended motion to amend the complaint. In the first motion, Plaintiff points out that
defendants Wilson and Zeka have pleaded guilty and that he is a victim of their
fraudulent business. He asserts that he has a right to reclaim the $600.00 which he paid
them.
In his amended motion for leave to amend the complaint, Plaintiff corrects
typographical errors that he made in his initial motion to amend. The amended motion
also adds an exhibit which consists of an order in a criminal case against Wilson and
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Zeka. The order overrules a magistrate judge’s ruling and grants the Government’s
motion to disqualify counsel for Wilson.
II. Discussion
Ordinarily, the Court must grant leave to amend a pleading “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Under this Rule,
motions to amend are “frequently filed and, generally speaking, ‘freely’
allowed.” Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612,
615 (6th Cir. 2010). However, where a plaintiff seeks to amend his
complaint after an adverse judgment, he must “meet the requirements for
reopening a case established by Rules 59 or 60.” Id. at 616.
Moncier v. Jones, 557 F. App’x 407, 410 (6th Cir. 2014). “A motion for leave to amend
will be denied where there is “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [and/or] futility
of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff filed his first motion to amend fourteen months after the Court dismissed
his complaint, and he has not offered any explanation for his undue delay in seeking to
amend his complaint. He also has not filed a motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e) or a motion for relief from judgment under
Federal Rule of Civil Procedure 60. Instead, he filed his motions under Federal Rules of
Civil Procedure 15 and 19. Rule 19 (“Required Joinder of Parties”) has no application
here, and Rule 15 does not apply to motions filed after an adverse judgment; nor does it
give parties the right to amend. Moncier, 557 F. App’x at 410.

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Additionally, Plaintiff has not met the requirements for re-opening this case under
Rules 59 and 60. Although Plaintiff apparently was the victim of the defendants’
fraudulent business, the fact remains that the defendants were not state officials, and their
conduct was not “fairly attributable to the state.” Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 937 (1982). As such, Plaintiff has failed to state a claim under §1983, which
requires showing that the plaintiff was deprived of a federal right by a person acting
under color of law. Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). Furthermore,
Plaintiff’s loss of $600.00 does not satisfy the threshold amount needed for diversity-ofcitizenship jurisdiction. See 28 U.S.C. § 1332(a)(1) (stating that “[t]he district courts
shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-citizens of different States”).
Because Plaintiff’s allegations are frivolous and fail to state a plausible claim for
which relief may be granted, it would be futile to file an amended complaint. The Court
therefore denies Plaintiff’s motion for leave to file an amended complaint (ECF No. 7)
and his amended motion for leave to file an amended complaint (ECF No. 8).
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: December 8, 2016
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on December 8, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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