Parker v. McCoy et al

Filing 6

ORDER OF DISMISSAL AND CAUTION TO PLAINTIFF ABOUT FILING REPETITIVE, FRIVOLOUS LAWSUITS Signed by Chief District Judge Louis Guirola, Jr. on 8/14/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
TRENIECE MAREA PARKER

PLAINTIFF

v.

CAUSE NO. 1:17-cv-177-LG-MTP

DARRYL GLEN MCCOY, SR., et al.

DEFENDANTS

ORDER OF DISMISSAL AND CAUTION TO PLAINTIFF
ABOUT FILING REPETITIVE, FRIVOLOUS LAWSUITS
This cause is before the Court sua sponte for evaluating whether Plaintiff
Treniece Marea Parker’s claims in her [5] Amended Complaint should be dismissed
under 28 U.S.C. § 1915(e)(2)(B). Having considered the record and applicable law,
the Court is of the opinion that this action should be dismissed for failure to state a
claim on which relief may be granted and for frivolousness. The Court warns
Plaintiff that repetitive, frivolous filings will not be tolerated.
BACKGROUND
Plaintiff Parker brought this purported civil rights action against multiple
defendants on June 16, 2017. After granting Plaintiff’s request to proceed in forma
pauperis, United States Magistrate Judge Michael T. Parker screened Plaintiff’s
Complaint pursuant to 28 U.S.C. § 1915(e)(2)1 and thereafter recommended to this
Court “that the Court dismiss with prejudice Plaintiff’s federal claims pursuant to
28 U.S.C. § 1915(e)(2), decline exercising supplemental jurisdiction over Plaintiff’s
state-law claims, and dismiss the state-law claims without prejudice.” (Rep. & Rec.

As correctly noted by Judge Parker, this section applies equally to prisoners
and non-prisoners alike who are proceeding IFP.
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4, ECF No. 4). Instead of timely responding to the Report and Recommendation,
Plaintiff filed an Amended Complaint, including adding numerous Defendants to
this lawsuit.
In her original [1] Complaint, Plaintiff alleged that Defendant Darryl McCoy
should have been prosecuted, convicted, and sentenced for a “hit and run”, but was
not. From what the Court can discern, Plaintiff’s Amended Complaint – and the
more than one hundred pages of unlabeled exhibits attached thereto – does little to
clarify or expand Plaintiff’s allegations. Instead, Plaintiff states: “Amended
Complaint to emphasis the arbitrations and reparations needed against Darryl
Glen McCoy, Sr.’s Racketeering Influenced and Corrupt Organizations Invasions
and Infictrations [sic].” (Am. Compl. 1, ECF No. 5).
In addition to McCoy, Plaintiff has named over fifty individuals and entities as
defendants, including the FBI; Biloxi Municipal Court; Harrison County,
Mississippi; Harrison County Sheriff’s Department; Biloxi Chief of Police; Gulfport
Chief of Police; District Attorney Joel Smith; District Attorney’s Office 1st and 2nd
Judicial District; Courthouse of Harrison County; Biloxi Police Department;
Gulfport Police Department; Ann Beavers; Joan Marea Barkum; Edward Joseph
Barkum; Michael Ray Barkum; Yancy Parker; Nathaniel Taylor Barkum; Edward
Joseph Barkum; Michael Ray Barkum; Robert Fant Walker; City of Gulfport; City
of Biloxi; Win Job Centers; Calvin William; James C. Steele; City of Gulfport
Prosecutor Richard Smith; City of Biloxi Prosecutor; Gulfport Municipal Court;
Masons; Eastern Stars; Stan, McDonald’s General Manager–Creosote Store;
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Schular Properties; Matt, Schular Properties Security Guard; Memorial Hospital at
Gulfport; DoubleTree Hotel; Sonja, Front Desk at DoubleTree; Gulf Coast Women’s
Center for Non-Violence; Hancock Bank; Debra Burrell, Darryl McCoy’s Inlaw and
Lead Usher - Hancock Bank Employee; WLOX; Edgewater Mall; Terry Powell,
General Manager Edgewater Mall; Tyrus Barnes; Garry William Sullivan; Danelle
McClellan; Christine Walker; Lorraine Garner; Chapel UMC; Merit Health; Joe,
Security at Garden Park Medical Center; Dr. Leepeeples; Fresh Fire
Ministries–Tyrus Barnes Ministries; St. John A.M.E. Church; Mercy Seat Church;
Mount Pleasant United Methodist Church; Arstce Taylor, Jason Taylor’s Father;
Jason Taylor’s Mother; Darryl McCoy’s Father; Jason Taylor; Faith Baptist Church;
Bobbie Brown; Wilmer Dedeaux; the Economy of Hwy 49; the Economy of Cowan
Lorraine Rd.; Balch and Bingham; and Marie Bond of Balch and Bingham.
Nevertheless, Plaintiff’s factual allegations do not provide a connection to, or even
reference, the vast majority of these Defendants.
DISCUSSION
In considering whether a plaintiff has stated a claim on which relief may be
granted, the Court “‘accept[s] all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.’” Bosarge v. Miss. Bureau of Narcotics, 796
F.3d 435, 439 (5th Cir. 2015) (citation omitted). “[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) (citation and quotation
marks omitted). “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at
679. “A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Bosarge, 796 F.3d at 439 (citation and
quotation marks omitted). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (citation, quotation marks,
and brackets omitted).
The Court has screened the Amended Complaint and is of the opinion that
Plaintiff has not stated any federal claim on which relief may be granted, and,
further, that the Amended Complaint is frivolous. Plaintiff states that the basis for
the Court’s jurisdiction is federal question. However, to the extent Plaintiff wants
Defendant McCoy to be prosecuted for the alleged “hit and run”, a plaintiff does not
have a constitutional or other federal right to have an individual criminally
prosecuted. See, e.g. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990); Green v.
Revel, 413 F. App’x 698, 700 (5th Cir. 2011); Lewis v. Jindal, 368 F. App’x 613, 614
(5th Cir. 2010). Even where an official has the authority to decide whether or not to
pursue criminal charges, the decision to file or not to file those charges does not give
rise to federal civil liability. See Oliver v. Collins, 904 F.3d 278, 281 (5th Cir. 1990);
see also Lewis, 368 F. App’x at 614 (“It is well-settled that the decision whether to
file criminal charges against an individual lies within the prosecutor’s discretion,

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and private citizens do not have a constitutional right to compel criminal
prosecution.”). Thus, even assuming one or more of the Defendants had the
authority to prosecute McCoy, a decision not to do so would not be actionable here.
Moreover, if Plaintiff is complaining about the actions of state court judges or
prosecutors, those individuals are immune from suit. See, e.g., Krueger v. Reimer,
66 F.3d 75, 77 (5th Cir. 1995); Oliver, 904 F.2d at 281; Johnson v. Kegans, 870 F.2d
992, 995-96 (5th Cir. 1989); Quinn v. Roach, 326 F. App’x 280, 292-93 (5th Cir.
2009); Workman v. Calogero, 174 F. App’x 824, 826 (5th Cir. 2006); Sanders v. U.S.
Justice Court of Sunflower Cty., 35 F. App’x 387, 387 (5th Cir. 2002). And,
Plaintiff’s vague reference to RICO is woefully insufficient to state a valid RICO
claim.
Notably, as discussed above, Plaintiff fails to state any factual allegations
against most of the Defendants. The Court finds that Plaintiff has failed to state a
claim and also that both her Complaint and Amended Complaint constitute
frivolous filings. See, e.g., Krueger, 66 F.3d at 77; Lewis, 368 F. App’x at 614-15;
Sanders, 35 F. App’x at 387. Indeed, the Court is of the opinion that Plaintiff’s
filings not only are frivolous, but also are delusional.2
Finally, and as recognized by Judge Parker, “[t]o the extent Plaintiff seeks to
assert claims against McCoy arising from the hit-and-run, those claims are

This plaintiff has been observed by court and security personnel loitering in
and about the courthouse for hours on end and has been found sleeping on the
courtroom foyer benches.
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governed by state tort law.” (Rep. & Rec. 4, ECF No. 4). Because the Court is of the
opinion that no federal claim has been stated, the Court will exercise its broad
discretion to decline to exercise supplemental jurisdiction over any purported statelaw claim and will dismiss any such claim without prejudice. See 28 U.S.C. §
1367(c)(3).
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s federal
claims are DISMISSED WITH PREJUDICE. The Court declines to exercise
supplemental jurisdiction over any remaining state-law claims, and those claims
are DISMISSED WITHOUT PREJUDICE. A separate judgment will be entered.
THE COURT SPECIFICALLY CAUTIONS PLAINTIFF THAT IT MAY
IMPOSE SANCTIONS UPON A FINDING THAT AN INDIVIDUAL HAS
FILED REPETITIVE, FRIVOLOUS LAWSUITS, INCLUDING REFUSING
TO ALLOW THE INDIVIDUAL TO FILE ADDITIONAL PRO SE
COMPLAINTS WITHOUT FIRST OBTAINING LEAVE OF COURT TO DO
SO. SEE TRIBBIT V. WARD, 81 F.3D 156, 156 (5TH CIR. 1996). PLAINTIFF
SHOULD NOT FILE ANY LAWSUIT IN THIS COURT BASED ON THESE
SAME FACTS AND SHOULD ALSO NOT FILE ANY ADDITIONAL
FRIVOLOUS LAWSUITS. THE COURT WILL NOT HESITATE TO
INSTITUTE SANCTIONS IF IT FINDS THAT PLAINTIFF HAS ABUSED
PROCESS IN FILING FUTURE LAWSUITS.

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IT IS FURTHER ORDERED AND ADJUDGED that the Clerk should mail
a copy of this Order to Plaintiff at the address provided and also hand-deliver a copy
to Plaintiff if she appears at the Clerk’s Office.
SO ORDERED AND ADJUDGED this the 14th day of August, 2017.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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