Pennington-Thurman v. United States of America et al

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis 2 is GRANTED. IT IS FURTHER ORDERED that plaintiff's complaint is DISMISSED without prejudice. A separate order of dismissal will be entere d herewith. IT IS FURTHER ORDERED that plaintiff's motion to have notice of removal filed as a motion for removal 5 is DENIED as moot. IT IS FURTHER ORDERED that plaintiff's motion for preliminary injunction 6 is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Rodney W. Sippel on 10/25/2017. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILMA M. PENNINGTON-THURMAN,
Plaintiff,
v.
U.S.A., et al.,
Defendants.

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No. 4:17-cv-2536-RWS

MEMORANDUM AND ORDER
This matter is before the Court on the motion of pro se plaintiff Wilma M. PenningtonThurman for leave to proceed in forma pauperis in this civil action. The Court has reviewed the
financial information submitted in support, and will grant the motion. In addition, the Court will
dismiss the complaint.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. A
pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do,” nor will a complaint suffice if it tenders “naked assertion[s]” devoid of
“further factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
When conducting initial review pursuant to § 1915(e)(2), the Court must accept as true
the allegations in the complaint, and must give the complaint the benefit of a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the tenet that a court must accept the
allegations as true does not apply to legal conclusions, Iqbal, 556 U.S. at 678, and affording a

pro se complaint the benefit of a liberal construction does not mean that procedural rules in
ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993). Even pro se complaints are
required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912, 914-15
(8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because
an additional factual allegation would have formed a stronger complaint”).
Background
Plaintiff is a frequent pro se and in forma pauperis litigator. Following is a summary of
her prior litigation that is relevant to the case at bar.
In 2009, plaintiff initiated bankruptcy proceedings in the United States Bankruptcy Court
for the Eastern District of Missouri. See In re Wilma M. Pennington-Thurman, Case No. 0946628 (Bankr. E.D. Mo. Jul. 10, 2009).1 The Honorable Barry S. Schermer, United States
Bankruptcy Judge, presided over that case. While that case was pending, plaintiff filed two
lawsuits in Missouri state court related to proceedings that had been initiated against her
regarding the mortgage on her property located at 8722 Partridge Avenue in St. Louis, Missouri.
On January 27, 2010, plaintiff was granted a discharge in the bankruptcy proceedings. In April
2010, Judge Schermer approved a settlement that provided, inter alia, that the Missouri lawsuits
were property of plaintiff’s Chapter 7 bankruptcy estate and subject to administration by the
Chapter 7 Trustee. Plaintiff made numerous attempts to attack the propriety of Judge Schermer’s
approval of the settlement, and to reopen her bankruptcy proceedings. She also filed lawsuits in
this United States District Court related to foreclosure and eviction proceedings involving the
1

The Court takes judicial notice of the records in this case. See Stutzka v. McCarville, 420 F.3d 757, 760 n. 2 (8th
Cir. 2005) (taking judicial notice of default judgment issued in separate bankruptcy court action, and noting that this
Court “may take judicial notice of judicial opinions and public records”).

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Partridge Avenue property, both of which were dismissed. Pennington-Thurman v. United
States, Case No. 4:15-cv-1628-RWS (E.D. Mo. Oct. 28, 2015); Pennington-Thurman v.
Schermer, Case No. 4:17-cv-1093-CDP (E.D. Mo. Apr. 6, 2017).
The Complaint
Plaintiff states that she is proceeding under 11 U.S.C. § 348(f)(1),2 and also that she is
alleging fraud in connection with personal property. Plaintiff states that the United States
Bankruptcy Court violated her right to have her case heard before an Article III judge. This
statement appears to be based upon Judge Schermer’s approval of the above-described
settlement. Plaintiff describes some of her prior litigation, including her bankruptcy court
proceedings and the proceedings involving the Partridge Avenue property. She claims that her
civil rights were violated, and she claims that fraud was committed against her in conjunction
with the proceedings related to the Partridge Avenue property. Plaintiff names four defendants:
U.S.A., U.S., Inc.,3 The United States Bankruptcy Court, and United States Attorney General
Jeff Sessions. As relief, she seeks unspecified compensatory and punitive damages, as well as
$150,000 plus interest.
Discussion
Plaintiff’s complaint is fatally defective as to defendants U.S.A., U.S., Inc., and the
United States Bankruptcy Court because those defendants are immune from suit under the
doctrine of sovereign immunity. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir. 1982) (the
United States and its agencies are not proper defendants because of sovereign immunity); see
also Edlund v. Montgomery, 355 F. Supp. 2d 987, 991 (D. Minn. 2005) (the Bankruptcy Court
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11 U.S.C. § 348(f)(1) is a provision of the United States Bankruptcy Code that relates to the administration of
cases in Bankruptcy Court. It does not provide authority to file an action for monetary damages in this Court.
3

Plaintiff does not identify what entity “U.S., Inc.” is, but the Court presumes she intends to refer to the United
States of America.

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itself is not a proper defendant because it is protected by sovereign immunity). Under the
doctrine of sovereign immunity, the United States and its agencies can be sued only if, and to the
extent that, the protections of sovereign immunity have been formally waived. Manypenny v.
United States, 948 F.2d 1057, 1063 (8th Cir. 1991). Any waiver of such immunity must be
“expressed unequivocally” by Congress. Id. In the case at bar, plaintiff has not demonstrated
any waiver of sovereign immunity, nor is the Court independently aware of any express
congressional authorization for the lawsuit that she is attempting to bring here. Thus, the Court
finds that sovereign immunity bars Plaintiff's lawsuit against U.S.A., U.S., Inc., and the United
States Bankruptcy Court.
The complaint is also subject to dismissal because it does not describe what any named
defendant, including Sessions, did or failed to do that could be viewed as a violation of plaintiff’s
rights under any cognizable legal theory.

Instead, plaintiff’s allegations are vague and

conclusory and fall short of the standards outlined in Iqbal, 556 U.S. 662. Plaintiff’s complaint
simply fails to state a plausible claim for relief against any named defendant, and it is therefore
subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). This is especially so because
plaintiff indicates that she intends to sue the defendants for some type of alleged fraud. The
Federal Rules of Civil Procedure impose a heightened pleading standard for fraud claims,
requiring that “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Plaintiff’s complaint does
not come close to satisfying this requirement, as there are no allegations describing what
wrongdoing any named defendant committed.
Accordingly,

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IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s complaint is DISMISSED without
prejudice. A separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff’s motion to have notice of removal filed as a
motion for removal (Docket No. 5) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motion for preliminary injunction (Docket
No. 6) is DENIED as moot.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 25th day of October, 2017.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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