Toole v. Obama et al

Filing 15

ORDER dismissing with prejudice Defendants Halil Suleyman Ozerden (Judge), John Roberts (Chief Judge), John Paul Stevens (Justice), Robert H. Walker (Magistrate Judge), Louis Guirola, Jr (Judge), Barack Obama (President), and setting forth requirements for Plaintiff's written Response that must be entered on or before March 12, 2013. Signed by District Judge Keith Starrett on February 20, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

CATHY L. TOOLE

PLAINTIFF

VS.

CIVIL ACTION NO. 1:12cv363-KS-MTP

PRESIDENT BARACK OBAMA, et al.

DEFENDANTS

ORDER
This matter is before the Court sua sponte for screening purposes pursuant to
Title 28 U.S.C. § 1915(e)(2), and under the Court’s duty to determine whether it has
subject matter jurisdiction over Plaintiff’s claims. See, e.g., Wachovia Bank v. Schmidt,
546 U.S. 303, 316, 126 S. Ct. 941, 163 L. Ed. 2d 797 (2006); Warren v. United States,
874 F.2d 280, 281-82 (5th Cir. 1989); Fed. R. Civ. P. 12(h)(3). For the reasons stated
below, the Court finds that Plaintiff’s claims against Judge Louis Guirola, Jr., Judge
Robert H. Walker, Judge Halil S. Ozerden, President Barack Obama, Chief Justice John
G. Roberts, and Justice John Paul Stevens should be dismissed. The Court also finds
that the Plaintiff should be required to provide further information regarding her claims
against the remaining Defendants before this action proceeds on its merits.
BACKGROUND
Plaintiff Cathy L. Toole is not a stranger to this Court. Plaintiff has filed four prior
actions, each principally seeking the recovery of certain benefits from the U.S.
Department of Veterans Affairs (“VA”) relating to the military service of her deceased
husband, James L. Toole. (See Case Nos. 1:11cv508; 1:10cv418; 1:08cv1481;
1:06cv716.) Three of those suits were dismissed due to the absence of subject matter

jurisdiction.1 (See Case Nos. 1:11cv508; 1:08cv1481; 1:06cv716.) The remaining
action was dismissed on service of process, statute of limitations, and personal
jurisdiction-based grounds. (See Case No. 1:10cv418.)2
On November 19, 2012, Plaintiff filed this pro se lawsuit against Judges Guirola,
Walker and Ozerden; President Obama; Supreme Court Justices Roberts and Stevens;
and several federal administrative officials. (See Complaint [1].) At bottom, this suit
appears to be another effort by the Plaintiff to challenge the VA’s denial of benefits
relating to her husband’s military service. However, that effort is obscured by Plaintiff’s
numerous claims against those individuals she believes responsible for the dismissal of
her prior lawsuits, for failing to provide her with “a U.S. Court Date by law”3, and/or for
alleged wrongdoing during the course of her various efforts to obtain benefits from the
VA.
On January 28, 2013, Plaintiff was granted leave to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915. (See Order [13].) Under that statute, an action

1

A district court is precluded from hearing an individual’s challenge to a denial of
benefits by the VA pursuant to 38 U.S.C. § 511. See Zuspann v. Brown, 60 F.3d 1156,
1158 (5th Cir. 1995).
2

Plaintiff’s request for benefits from the VA has also worked its way through the
United States Court of Appeals for Veterans Claims (the “VA court”) and the United
States Court of Appeals for the Federal Circuit, both of which are authorized by statute
to review VA benefits determinations. See Toole v. Shinseki, No. 07-2675, 2009 WL
2612426 (Vet. App. Aug. 27, 2009), appeal dismissed, 364 Fed. Appx. 627 (Fed. Cir.
2010). The VA court affirmed the decision of the Board of Veterans’ Appeals “that
denied VA service connection for the cause of Mr. Toole’s death, dependency and
indemnity compensation (DIC) benefits, and Dependent’s Educational Assistance (DEA)
benefits.” Toole, 2009 WL 2612426, at *1.
3

(Complaint [1] at p. 18.)
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shall be dismissed at any time if it “(i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court now examines
Plaintiff’s stated claims consistent with its § 1915(e)(2)(B) screening obligations and its
duty to determine “at any time” if subject matter jurisdiction is lacking. Fed. R. Civ. P.
12(h)(3).

DISCUSSION

Judges Louis Guirola, Jr., Robert H. Walker, and Halil S. Ozerden
In liberally construing Plaintiff’s pro se Complaint, the Court finds that Plaintiff
alleges Judges Guirola, Walker and Ozerden violated her First Amendment right to
petition the government for redress of grievances in dismissing her prior suits.4 See
Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2494, 180 L. Ed. 2d 408 (2011)
(“[T]he right of access to courts for redress of wrongs is an aspect of the First
Amendment right to petition the government.”) (citations omitted). Plaintiff seeks
damages for mental anguish purportedly arising from the dismissal of her lawsuits. This
Court is authorized to hear “all civil actions arising under the Constitution . . . .” 28
U.S.C. § 1331. However, the Court is not permitted to allow the Plaintiff to proceed on
her claims against Judges Guirola, Walker and Ozerden because they are entitled to
absolute judicial immunity.

4

Notwithstanding this allegation, U.S. Magistrate Judge Robert H. Walker did not
enter any dismissal orders in Plaintiff’s prior actions. Judge Walker granted the Plaintiff
IFP status in Case Number 1:08cv1481, denied Plaintiff’s motion for a court date as
premature in Case Number 1:10cv418, and recommended that Plaintiff’s motion to
proceed IFP in Case Number 1:11cv508 be denied. This distinction, however, is not
outcome determinative for purposes of the Court’s analysis of Plaintiff’s claims against
Judge Walker.
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“Judicial officers are entitled to absolute immunity from claims for damages
arising out of acts performed in the exercise of their judicial functions.” Boyd v. Biggers,
31 F.3d 279, 284 (5th Cir. 1994) (citing Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.
1993)). “[J]udicial immunity is an immunity from suit, not just from ultimate assessment
of damages.” Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991)
(citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)).
“[I]t is a general principle of the highest importance to the proper administration of
justice that a judicial officer, in exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal consequences to himself.”
Id. at 10 (citation omitted). Accordingly, allegations of malice or bad faith will not
preclude judicial immunity. Davis v. Tarrant County, Tex., 565 F.3d 214, 221 (5th Cir.
2009) (citing Mireles, 502 U.S. at 11). “Judicial immunity can be overcome only by
showing that the actions complained of were nonjudicial in nature or by showing that the
actions were taken in the complete absence of all jurisdiction.” Boyd, 31 F.3d at 284.
Plaintiff’s allegations against Judges Guirola, Walker and Ozerden regarding their
court rulings clearly concern matters judicial in nature. Furthermore, sufficient
jurisdictional authority existed for the entry of the Judges’ orders in Plaintiff’s prior
lawsuits. Cf. United States v. Ruiz, 536 U.S. 622, 628, 122 S. Ct. 2450, 153 L. Ed. 2d
586 (2002) (“[I]t is familiar law that a federal court always has jurisdiction to determine
its own jurisdiction.”) (citation omitted). Therefore, Judges Guirola, Walker and Ozerden
are entitled to judicial immunity and Plaintiff’s claims against them will be dismissed with
prejudice. See Boyd, 31 F.3d at 285 (ruling that claims against a judicial officer entitled
to judicial immunity were properly dismissed with prejudice); Brown v. Harrison County
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Circuit Court, No. 1:05CV289, 2007 WL 1306422, at *3 (S.D. Miss. Apr. 30, 2007)
(dismissing with prejudice claim against a judicial officer pursuant to §
1915(e)(2)(B)(iii)).
This dismissal does not leave the Plaintiff without recourse if she believes that
any federal judge, including the undersigned, has engaged in conduct prejudicial to the
effective and expeditious administration of the business of the courts. The Rules for
Judicial-Conduct and Judicial-Disability Proceedings (the “Rules”), promulgated
pursuant to 28 U.S.C. §§ 331 and 358, govern such complaints and specify the
procedures available to an individual claiming that a judicial officer has engaged in
prohibited conduct. A copy of the Rules may be obtained free of charge from the Clerk
at the United States Court of Appeals for the Fifth Circuit, 600 S. Maestri Place, New
Orleans, LA 70130, or found at:
http://www.ca5.uscourts.gov/clerk/LocalJudicialMisconductRules.pdf.
President Barack Obama
Plaintiff allegedly wrote President Obama in November of 2011, requesting his
assistance with securing a court date under the First Amendment and Sixth Amendment
of the U.S. Constitution in relation to her claim for benefits from the VA. Apparently, the
President did not respond to the Plaintiff’s communication and she is now suing him in
this Court for a “Court Date, and also one year of mental anguish.” (Complaint [1] at p.
7.) Plaintiff appears to contend that the President violated his oath of office to support
and defend the Constitution by not securing a court date for her.
A claim is “frivolous” for purposes of § 1915 “if ‘it lacks any arguable basis in law
or fact.’” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (quoting Harris v.
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Hegmann, 198 F.3d 153, 156 (5th Cir. 1999)). A claim “lacks an arguable basis in law if
it is based on an indisputably meritless legal theory, such as if the complaint alleges
violation of a legal interest which clearly does not exist.” Id. A factually baseless
complaint encompasses “claims describing fantastic or delusional scenarios, claims with
which federal district judges are all too familiar.” Denton v. Hernandez, 504 U.S. 25, 32,
112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992) (citation omitted).
Plaintiff’s claims against the President are legally baseless to the extent they can
be construed to rely on the Sixth Amendment of the U.S. Constitution. “[T]he Sixth
Amendment does not govern civil cases.” Turner v. Rogers, 131 S. Ct. 2507, 2516, 180
L. Ed. 2d 452 (2011). Moreover, the factual allegations underlying the claims are
“fanciful,” “fantastic” and “delusional” to the extent they presume the President has any
duty to intervene in Plaintiff’s dispute with the VA and secure a court date for her.
Denton, 504 U.S. at 33. The President is also entitled to absolute immunity from
Plaintiff’s allegations of damages liability. See Nixon v. Fitzgerald, 457 U.S. 731, 749,
102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982)). As a result, Plaintiff’s complaint against the
President is frivolous under § 1915(e)(2)(B)(i) and will be dismissed with prejudice. See
Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (holding that claims dismissed as
frivolous under § 1915 should be ordinarily dismissed with prejudice).

Justices John G. Roberts and John Paul Stevens
Plaintiff contends that Justice Roberts is not supporting and defending the
Constitution because he swore Barrack Obama in as President and he is not requiring
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the President to support and defend the Constitution. Plaintiff allegedly wrote Justice
Roberts on September 12, 2012, regarding her complaints against President Obama.
Plaintiff’s complaint against Justice Stevens is that he is failing to require President
Obama and Justice Roberts to support and defend the Constitution. Plaintiff allegedly
wrote Justice Stevens on October 22, 2012, regarding her allegations against President
Obama and Justice Roberts.
The Plaintiff is apparently operating under the erroneous assumption that a
government official must secure a court date for her in order to support and defend the
Constitution. The Court finds Plaintiff’s suggestion that the Chief Justice or a retired
Associate Justice5 has a legal duty to intervene unilaterally in her benefits dispute with
the VA to be “fanciful,” “fantastic” and “delusional”. Denton, 504 U.S. at 33. Plaintiff’s
claims against Justice Roberts and Justice Stevens will be dismissed with prejudice as
frivolous pursuant to § 1915(e)(2)(B)(i).
C.R. Fischer, George Opfer, Linda A. Halliday, Richard A. Daley, Scott Levins,
Melanie S. Lane, Craig A. Moore and Eric Shinseki
The Court’s authority to preside over Plaintiff’s claims against the remaining
Defendants6 is not clear. For example, Plaintiff charges several of these Defendants
with “mail fraud” and asserts that the “Federal Employees must be held subject to
prosecution in a U.S. Court” for making false statements. (Complaint [1] at pp. 12, 13,

5

Justice Stevens retired from the Supreme Court in June of 2010. See
http://www.supremecourt.gov/about/biographies.aspx.
6

All of these individuals, except Scott Levins, appear to be administrative officials
associated with the VA. Mr. Levins is the Director of the National Personnel Records
Center, which is under the purview of the National Archives and Records
Administration.
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14, 16.) Plaintiff has no private right of action under the federal mail fraud statute,7 and
criminal prosecution is unavailable in this civil action. To the extent Plaintiff is
attempting to assert common law fraud claims, her allegations fall short of Federal Rule
of Civil Procedure 9(b)’s specificity requirement even if the pro se complaint is liberally
construed.8
Plaintiff also alleges violations of “the Open Public Records Act Law.” (Complaint
[1] at pp. 13, 19.) There is no federal “Open Public Records Act Law”. The Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, governs requests for public records from
federal administrative agencies, while the Privacy Act, 5 U.S.C. § 552a, generally allows
individuals to obtain government records pertaining to themselves. The Court will
construe Plaintiff’s records related allegations under the FOIA and Privacy Act given
Plaintiff’s pro se status. An individual is usually required to exhaust administrative
remedies prior to bringing a civil action under the FOIA or Privacy Act. See Taylor v.
U.S. Treasury Dep’t, 127 F.3d 470, 474, 477 (5th Cir. 1997). It is not clear from the face
of Plaintiff’s complaint if she exhausted administrative remedies prior to filing this suit.
Moreover, Plaintiff has sued only individual defendants, and “[n]either the Freedom of
Information Act nor the Privacy Act creates a cause of action for a suit against an
individual employee of a federal agency.” Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir.
1987). The agency is the proper defendant. See Batton v. Evers, 598 F.3d 169, 172
n.1 (5th Cir. 2010).

7

See Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir. 1977).

8

See, e.g., Cintron-Luna v. Roman-Bultron, 668 F. Supp. 2d 315, 318 (D.P.R.
2009); Tucker v. Bank One, N.A., 265 F. Supp. 2d 923, 925 (N.D. Ill. 2003).
-8-

Plaintiff’s Complaint also contains vague references to a deprivation of equal and
impartial justice. “The concept of equal justice under law is served by the Fifth
Amendment’s guarantee of due process, as well as by the Equal Protection Clause of
the Fourteenth Amendment.” Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S. Ct.
1895, 48 L. Ed. 2d 495 (1976). However, “[a]llegations of constitutional violations must
be pleaded with factual detail and particularity, not mere conclusory allegations.”
Jackson v. Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996) (citation and internal quotation
marks omitted). This pleading requirement extends to pro se claimants such as the
Plaintiff. See id. at 711.
Finally, the Court lacks jurisdiction over any claim that the VA wrongly refused
Plaintiff’s request for benefits. See Zuspann, 60 F.3d at 1158. A section of Plaintiff’s
Complaint and a subsequent filing suggest that the VA’s denial of benefits is what the
Plaintiff is ultimately complaining about in this cause. “I want to enter the U.S. Court
Room and present my own case before I receive my Declaration of New Worth and also
be paid for almost fourteen years worth of mental anguish [f]rom the Department of
Veterans Affairs.” (Complaint [1] at p. 17.) “The VA owes me Cathy L. Toole all the
social security checks total [sic] up after my husband passed away . . . .” (Dec. 7, 2012
Letter [6] at p. 3.) As a result, the Court will require the Plaintiff to submit the
information specified below so that it may determine whether it has jurisdiction over
Plaintiff’s remaining claims and if those claims are legally cognizable.
CONCLUSION
Accordingly, IT IS ORDERED:
1.

That Defendants Judge Louis Guirola, Jr., Judge Robert H. Walker, Judge
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Halil S. Ozerden, President Barack Obama, Chief Justice John G. Roberts, and Justice
John Paul Stevens are dismissed with prejudice from this cause.
2.

That on or before March 12, 2013, the Plaintiff must set forth a written

Response, filed with the Clerk of Court, to:
(a)

explain why this action should not be dismissed for lack of subject matter
jurisdiction because Plaintiff is ultimately challenging the Department of
Veterans Affairs’ denial of benefits relating to the military service of James
L. Toole;

(b)

set forth her specific causes of action against each of the following
Defendants: C.R. Fischer, George Opfer, Linda A. Halliday, Richard A.
Daley, Scott Levins, Melanie S. Lane, Craig A. Moore, and Eric Shinseki
(the “Remaining Defendants”);

(c)

specifically state as to any Remaining Defendant alleged to have violated
Plaintiff’s constitutional rights, how the Defendant violated her
constitutional rights;

(d)

specifically state as to any Remaining Defendant alleged to have made
false statements to the Plaintiff, the statements alleged to be false, who
made the false statements, when and where the statements were made,
and how the statements were false;

(e)

describe the administrative procedures the Plaintiff followed in requesting
any records purportedly withheld from her, and present any documentary
proof in Plaintiff’s possession showing that she exhausted those
procedures before filing this lawsuit; and
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(f)

identify any administrative agency allegedly withholding records requested
by the Plaintiff, and specify whether the Plaintiff seeks to make that
agency a defendant in this lawsuit because of its purported refusal to
produce the records.

3.

That Plaintiff’s failure to advise this Court of a change of address or failure

to comply with any order of this Court will be deemed as a purposeful delay and
contumacious act by Plaintiff and may result in the dismissal of this case.
4.

That the Clerk of Court is directed to mail a copy of this Order to the

Plaintiff at her last known address.
SO ORDERED AND ADJUDGED this the 20th day of February, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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