Lewis v. Harrison et al

Filing 26

MEMORANDUM OPINION re 25 Order on Motion to Dismiss. Signed by District Judge Sharion Aycock on 1/10/2017. (adm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
MOSES I. LEWIS, JR.
V.

PLAINTIFF

CIVIL ACTION NO. 3:16CV55-SA-RP

LASHUNDA HARRISON, ALICE STAPLETON,
BLONDIE ADAMS, &
DELTA PARTNER’S MANOR

DEFENDANTS

MEMORANDUM OPINION
Plaintiff Lewis brings this action pro se, claiming that LaShunda Harrison conspired with
Alice Stapleton and Blondie Adams in an effort to illegally trespass onto Lewis’s property and
steal $9,000. Presently before the Court is Defendant Harrison’s Motion to Dismiss [16] and
Plaintiff’s Motion to Deny Defendant’s Motion to Dismiss [19]. The Court has construed
Plaintiff’s Motion to Deny as a Response to Motion to Dismiss in accordance with Local
Uniform Civil Rule 7(b)(3).1 The court has considered all arguments and finds as follows.
Factual and Procedural Background
Lewis claims that on or before December 27, 2015, LaShunda Harrison met with Alice
Stapleton and Blondie Adams at Harrison’s home in Cordova, Tennessee. There, they allegedly
conspired to steal from Lewis. At the meeting, Stapleton, who is the site manager for Lewis’s
apartment, allegedly gave Harrison the key to Lewis’s apartment. Lewis claims that Harrison
then used the key to enter Lewis’s apartment to steal a purse containing $9,000. Plaintiff claims
Defendant Harrison transported the stolen money across the Mississippi-Tennessee state line and
then returned to Cordova.
Plaintiff claims that the meeting violated 18 United States Code, Section 241, and the
transporting of stolen money violated 18 United States Code, Section 2314. Furthermore,
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Plaintiff has also filed two separate Motions to Expedite the Court’s Ruling on the Defendant’s Motion to Dismiss
[23] and [24]. The Court finds these Motions now moot, and they shall be DENIED.

Plaintiff claims that Delta Partner’s Manor, Plaintiff’s apartment complex, was negligent in their
management and supervision of Stapleton. Finally, Plaintiff claims the entire transaction violates
his constitutional and civil rights under United States Code, Section 1985(3).
Defendant Harrison filed a Motion to Dismiss, alleging that the district court lacks
subject matter jurisdiction, arguing that Plaintiff is legally barred from pursuing federal criminal
statutes. Furthermore, Defendant Harrison alleges that Plaintiff does not state a claim for which
relief may be granted because he did not plead the required elements of his federal claim under
42 U.S.C. 1985(3).
Rule 12(b)(6) Standard
In order to survive a Rule 12(b)(6) motion to dismiss, “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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). A
claim is plausible if it contains “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id., 129 S. Ct. 1937.
Ultimately, the court’s task “is to determine whether the plaintiff has stated a legally
cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.” In re
McCoy, 666 F. 3d 924, 926 (5th Cir. 2012), cert. denied, 133 S. Ct. 192, 184 L. Ed. 2d 38 (2012)
(citing Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
Therefore, the Court must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F. 3d 228, 232-33 (5th
Cir. 2009). Still, this standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937.

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Analysis and Discussion
Federal courts have original subject matter jurisdiction only where a question of federal
law is involved or where there is diversity of citizenship between parties and the amount in
controversy exceeds $75,000. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377,
114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). The diversity statute requires “complete diversity” of
citizenship, i.e., a district court cannot exercise jurisdiction if one of the plaintiffs shares the
same state citizenship as one of the defendants. 28 U.S.C. § 1332; see also Whalen v. Carter, 954
F. 2d 1087, 1094 (5th Cir. 1992). The burden of establishing federal jurisdiction rests on the
plaintiff. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
According to the Complaint, Plaintiff is a resident of Shelby, Mississippi, and Defendants
Stapleton, Adams, and Delta Partner’s Manner are also residents of Shelby, Mississippi. Having
found that this action involves non-diverse parties, the Court notes that there is not complete
diversity.
Plaintiff’s first federal claim seeks recovery under 18 U.S.C. § 241. This criminal statute
provides penalties for either preventing or entering into a conspiracy to prevent other persons
from exercising certain federally protected rights. However, 18 U.S.C. § 241 does not provide a
basis for civil liability. See Hanna v. Home Ins. Co., 281 F. 2d 298, 303 (5th Cir. 1960); Ali v.
Shabazz, 8 F.3d 22 (5th Cir. 1993). Plaintiff’s second claim seeks recovery under 18 U.S.C. §
2314, which is a criminal statute relating to “transportation of stolen goods,” inter alia. This
criminal statute does not provide a private federal right of action for civil liability, either. See
Crawford v. Adair, No. 3:08CV281, 2008 WL 2952488, at *2 (E.D. Va. July 29, 2008) (no
private federal cause of action under § 2314); Piorkowski v. Parziale, No. 3:02CV00963, 2003

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WL 21037353, at *8 (D. Conn. May 7, 2003) (criminal statute does not provide, explicitly or
implicitly, a civil cause of action); Cooper v. N. Jersey Trust Co. of Ridgewood, N. J., 250 F.
Supp. 237 (S.D.N.Y. 1965) (18 U.S.C. Section 2314 does not give rise to a private federal right
of action). Further, decisions whether to prosecute or file criminal charges are generally within
the prosecutor’s discretion, and, as a private citizen, Plaintiff has no standing to institute a federal
criminal prosecution and no power to enforce a criminal statute. See Gill v. State of Texas, 153 F.
App’x 261, 262–63 (5th Cir. 2005) (citing Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct.
1146, 35 L. Ed. 2d 536 (1973)). Without standing, Plaintiff fails to establish a vital jurisdictional
requirement regarding these claims. Bender v. Williamsport Area School Dist., 475 U.S. 534,
546–547, 106 S. Ct. 1326, 1333–1334, 89 L. Ed. 2d 501 (1986). Thus, the deficiencies within the
complaint regarding these criminal claims are incurable, and Plaintiff’s claims under these
statutes must be dismissed with prejudice.
Even if Plaintiff did not establish subject matter jurisdiction regarding the first two
claims, Plaintiff poses a third federal claim under 42 U.S.C., Section 1985(3). Though Griffin v.
Breckenridge made Section 1985(3) applicable to private actions, the Supreme Court made it
clear that Congress did not intend that it be viewed as an all-embracing federal tort law intended
to apply to all tortious conspiratorial interferences with the rights of others. Griffin v.
Breckenridge, 403 U.S. 88, 102-103, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Therefore,
Defendant Harrison has alleged that Plaintiff failed to state a claim for which relief can be
granted regarding this claim. Thus, Defendant asks the court for a dismissal under Federal Rule
of Civil Procedure 12(b)(6). Specifically, Defendant Harrison argues that the Plaintiff failed to
allege that the conspiracy was class-based or motivated by race. Indeed, the elements necessary
to properly allege a Section 1985(3) complaint are that Defendants did:

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1) conspire or go in disguise on the highway or on the
premises of another;
(2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and
immunities under the laws;
(3) did, or caused to be done, “any act in furtherance of the
object of (the) conspiracy, whereby another was
(4) “injured in his person or property” or “deprived of
having and exercising any right or privilege of a citizen of
the United States.”
42 U.S.C. § 1985(3); See also Griffin, 403 U.S. at 102, 91 S. Ct. 1790.
The complaint alleges that Defendants conspired to go on the premises of another for the
purpose of depriving Plaintiff of his $9,000. However, Plaintiff failed to allege how this violation
specifically deprived Plaintiff of equal protection of the laws. “Intent to deprive of equal
protection, or equal privileges and immunities, means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” See
Griffin, 403 U.S. at 102, 91 S. Ct. 1790; see also Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th
Cir. 1994) (holding that the plaintiff must show that a conspiracy was motivated by a “class
based animus”). Thus, Plaintiff must allege an invidiously discriminatory motivation on the part
of the Defendants in order to survive 12(b)(6) analysis.
The court notes that pro se complaints are held to “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed.
2d 1081 (2007). “A pro se complaint is to be construed liberally with all well-pleaded allegations
taken as true.” Johnson v. Atkins, 999 F. 2d 99, 100 (5th Cir. 1993). However, a liberally
construed pro se complaint must still present enough facts giving rise to a claim on which relief
may be granted. Id.; see also Levitt v. Univ. of Texas at El Paso, 847 F. 2d 221, 225 (5th Cir.
1988).

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Although Plaintiff failed to allege any specific discriminatory motive as required, such
failure “should not automatically or inflexibi[ly] result in dismissal of the complaint with
prejudice to re-filing.” Hart v. Bayer Corp., 199 F. 3d 239, 247 n.6 (5th Cir. 2000). Indeed,
“[a]lthough a court may dismiss the claim, it should not do so without granting leave to amend,
unless the defect is simply incurable or the plaintiff has failed to plead with particularity after
being afforded repeated opportunities to do so.” Id.; Roberson v. McDonald Transit Ass., Inc.,
No. 3:14CV168-NBB-JMV, 2016 WL 2991142, at *3 (N.D. Miss. Apr. 20, 2016), report and
recommendation adopted, No. 314CV168-NBB-JMV, 2016 WL 2994083 (N.D. Miss. May 23,
2016).
Accordingly, Plaintiff will be given an opportunity to seek leave to amend the Section
1985(3) claim. If he properly asserts this federal claim, the Court may consider entertaining his
state law negligence claim as well.
Conclusion
For the reasons stated, Defendant’s Motion to Dismiss is GRANTED. Plaintiff’s claims
under 18 U.S.C. § 241 and 18 U.S.C. § 2314 are dismissed with prejudice. Plaintiff’s negligence
claims and claims regarding Section 1985(3) are dismissed without prejudice, and Plaintiff is
granted leave to amend his complaint within twenty-one days. Failure to file an Amended
Complaint within 21 days may result in dismissal of this case.
SO ORDERED this 10th day of January, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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