Wallace v. Bruegge et al

Filing 8

MEMORANDUM AND ORDER -.....IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that the "Private Attorney General" is STRICKEN as a party-plaintif f to this action, and the Clerk of Court shall docket this case as Stephen Paul Wallace v. Robert T. Bruegge, Patrick J. Malloy,III, John Doe, and Richard Roe. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to is sue upon the complaint, because the complaint is legally frivolous and fails to state a claim or cause of action. See 28 USC § 1915(e)(2)(B). IT IS FURTHER ORDERED that plaintiff's "Emergency Motion" [Doc. 7] is DENIED as moot. As separate Order of Dismissal shall accompany this Memorandum and Order. Signed by Honorable Audrey G. Fleissig on 10/14/2011. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEPHEN PAUL WALLACE, et al.,
Plaintiffs,
v.
ROBERT T. BRUEGGE, et al.,
Defendants.

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No. 4:11-CV-955-AGF

MEMORANDUM AND ORDER
This matter is before the Court upon the application of
Stephen Paul Wallace for leave to commence this action without
payment of the required filing fee [Doc. #2].1
§ 1915(a).

See 28 U.S.C.

Upon consideration of plaintiff's Financial Affidavit

[Doc. #6], the Court finds that he is financially unable to pay any
portion of the filing fee.

Therefore, plaintiff will be granted

leave to proceed in forma pauperis.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss
a complaint filed in forma pauperis at any time if the action is
frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief against a defendant who is

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The complaint caption reads, in part, as follows: "(1)
Stephen Paul Wallace, individually, and as (2) Private Attorney
General, ex rel; United States of America, Plaintiffs." Although
plaintiff is attempting to join the United States Attorney
General as a party-plaintiff to this action, he has no right to
do this. As such, the Court will strike the "Private Attorney
General" as a plaintiff to this action.

immune from such relief.

An action is frivolous if "it lacks an

arguable basis either in law or in fact."
U.S. 319, 325 (1989).

Neitzke v. Williams, 490

An action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state
a claim to relief that is plausible on its face.”

Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In reviewing a pro se complaint under § 1915(e)(2)(B), the
Court

must

construction.

give

the

complaint

the

benefit

of

a

liberal

Haines v. Kerner, 404 U.S. 519, 520 (1972).

The

Court must also weigh all factual allegations in favor of the
plaintiff, unless the facts alleged are clearly baseless.

Denton

v. Hernandez, 504 U.S. 25, 32 (1992).
The complaint and supplement
Plaintiff brings this action for monetary and injunctive
relief against Robert T. Bruegge (attorney), Patrick J. Malloy, III
(trust attorney), John Doe, and Richard Roe.

Plaintiff states,

inter alia, that (1) in 1990, he and his mother, Lorice T. Wallace,
were successor co-trustees of their family's forty million dollar
estate; (2) in June 2000, Bank of America was appointed as Lorice's
successor trustee; however, the appointment was "illicitly quashed
in the sham probate court which embezzled/confiscated all of
Lorice's

property

&

liquid

assets";

(3)

in

September

2001,

plaintiff "did sacrifice himself for his family by filing for
Chapter 11 Bankruptcy Reorganization, solely to compel the 'Coup

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Klan' to produce an accounting of the 'unique and irreplaceable
large remaining tracts of realty including the Wallace Family
extensive oil and gas reserves'"; (4) in 2003, Lorice died "due to
the covert overdosing . . . with Depakote by the 'Coup Klan,'" and
the estate's funds were "embezzled/confiscate[d]"; and (5) the Coup
Klan

"sanitiz[ed]

and

destroy[ed]

all

documents,

pleadings,

evidence, [and] adversary proceedings" relative to plaintiff's
bankruptcy case.

Plaintiff alleges "Enron type criminal financial

fraud," "criminal collusion," the violation of his constitutional
rights under 42 U.S.C. § 1985(2), and the "criminal confiscation of
all

[his]

'unique

developments.'"

and

irreplaceable

commercial

realty

In addition, he asserts state-law claims for

breach of contract, fraud, embezzlement, breach of fiduciary duty,
detrimental

reliance,

conversion,

intentional

infliction

of

emotional distress, and tortious interference of contract.
Plaintiff states that he is invoking the jurisdiction of this
Court "pursuant to the provisions of Title 18 U.S.C. §§ 241 and 242
[Conspiracy Against Rights & Deprivation of Rights Under Color of
Law], and under the Americans With Disabilities Act."
Discussion
Having carefully reviewed the complaint and supplement, the
Court finds that this action should be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B).

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A.

Claims under 18 U.S.C. §§ 241 and 242

Title 18 U.S.C. §§ 241 and 242 are criminal statutes that
prohibit violations against an individual's federal constitutional
rights.

Private rights to enforce federal statutes are found only

when "the statute manifests an intent 'to create not just a private
right but also a private remedy.'"

Gonzaga Univ. v. Doe, 536 U.S.

273, 284 (2002) (quoting Alexander v. Sandoval, 532 U.S. 275, 286
(2001)(emphasis

in

original)).

There

is

no

indication

that

Congress intended to create a private right of action for the
violation

of

§§

241

and

242,

and

therefore,

plaintiff

lacks

standing to bring a complaint for defendants' alleged violation of
these criminal statutes.
Cir.

1989)(only

the

See Cok v. Cosentino, 876 F.2d 1,2 (1st

United

States

as

prosecutor

can

bring

a

complaint under 18 U.S.C. §§ 241-242); Newcomb v. Ingle, 827 F.2d
675, 676 n. 1 (10th Cir. 1987)(§ 241 does not provide for private
cause of action).

Moreover, the initiation of a federal criminal

prosecution is a discretionary decision within the Executive Branch
and is not subject to judicial compulsion.

See Ray v. United

States Dept. of Justice, 508 F.Supp. 724, 725 (E.D.Mo. 1981); 28
U.S.C. § 547(1).
B.

Claims under the Americans with Disabilities Act ("ADA")

Title II of the ADA "prohibits qualified individuals with
disabilities from being excluded from participation in or the
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benefits of the services, programs, or activities of a public
entity."

Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999).
To state a prima facie claim under the ADA, a
plaintiff must show: 1) he is a person with a
disability as defined by statute; 2) he is
otherwise qualified for the benefit in
question; and 3) he was excluded from the
benefit due to discrimination based upon
disability.

Id. at 858.
disability,

Plaintiff does not allege that he possesses a
was

otherwise

qualified

for

a

benefit,

or

was

discriminated against because of a disability, and thus, the
complaint fails to state a prima facie claim under the ADA.
C.

Claim under 42 U.S.C. § 1985(2)

The first part of § 1985(2) creates a private right of action
for damages based on certain forms of interference with federal
judicial proceedings, to wit:
If two or more persons . . . conspire to
deter, by force, intimidation, or threat, any
party or witness in any court of the United
States from attending such court, or from
testifying to any matter pending therein,
freely, fully, and truthfully, or to injure
such party or witness in his person or
property on account of his having so attended
or testified.
The second part of § 1985(2) creates a similar cause of action for
interference with state proceedings.
In

the

instant

action,

plaintiff

summarily

alleges

that

defendants John Doe and Richard Roe violated his rights under §
1985(2) when they conspired to destroy his life, liberty, and

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pursuit of happiness.

Plaintiff's conclusory allegations fail to

state a claim or cause of action under § 1985(2).
D.

Pendent state claims

Because plaintiff's federal claims will be dismissed, all
remaining pendent state claims should be dismissed, as well.

See

28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966) (if federal claims are dismissed before trial, remaining
state claims should also be dismissed); Hassett v. Lemay Bank &
Trust Co., 851 F.2d 1127, 1130 (8th Cir. 1988) (where federal
claims

have

been

dismissed,

jurisdiction

over

pendent

district

state

claims

courts
as

may
a

decline

"matter

of

discretion").
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to
proceed in forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the "Private Attorney General" is
STRICKEN as a party-plaintiff to this action, and the Clerk of
Court shall docket this case as Stephen Paul Wallace v. Robert T.
Bruegge, Patrick J. Malloy, III, John Doe, and Richard Roe.
IT IS FURTHER ORDERED that the Clerk shall not issue process
or cause process to issue upon the complaint, because the complaint
is legally frivolous and fails to state a claim or cause of action.
See 28 U.S.C. § 1915(e)(2)(B).

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IT IS FURTHER ORDERED that plaintiff's "Emergency Motion"
[Doc. #7] is DENIED as moot.
A separate Order of Dismissal shall accompany this Memorandum
and Order.
Dated this 14th day of October, 2011.

____________________________
UNITED STATES DISTRICT JUDGE

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