Voss v. Ricketts et al

Filing 12

MEMORANDUM AND ORDER that the Plaintiff's Complaint (Filing No. 1 ), Amended Complaint (Filing No. 8 ), and Second Amended Complaint (Filing No. 10 ) are dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). All pending motions are denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH DEWEY VOSS,
Plaintiff,
v.
PETE RICKETTS, Individual and as
Governor, the State of Nebraska, et
al.,
Defendants.

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4:15CV3137

MEMORANDUM
AND ORDER

Plaintiff Kenneth Dewey Voss, a non-prisoner, filed this case on November 12,
2015. Voss has been granted leave to proceed in forma pauperis. (Filing No. 7.) The
court now conducts an initial review of Voss’s Complaint (Filing No. 1), Amended
Complaint (Filing No. 8), and Second Amended Complaint (Filing No. 10)1 to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2).
I. SUMMARY OF COMPLAINT
Voss has filed “Complaint[s] for False Arrest and Imprisonment, Battery, and
Malicious Prosecution and Violation of Natural and Civil Rights” against 25
defendants, in their individual and official capacities, who can generally be
categorized as the Nebraska Governor; Nebraska Attorney General; judges of the
Nebraska Supreme Court, Nebraska Court of Appeals, Brown County Court, and
District Court for the 8th Judicial District of Nebraska; sheriff and deputy sheriff of
Brown County, Nebraska; clerks of the county and district courts in Brown County;
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Plaintiff filed two amended complaints without permission from the court, as
required by Nebraska Civil Rules 15.1(a) and 15.1(c). Pursuant to Nebraska Civil Rule
15.1(b), I shall treat these amended pleadings as supplemental to Plaintiff’s original
complaint.

mayor of Long Pine, Nebraska; city attorney for Long Pine; and county attorney for
Brown County. Voss has also sued “John and Jane Does, 1-99, officials and officers
of the State of Nebraska, or any political subdivision thereof.”
Voss alleges that he is “a man created by Nature and the Laws of Nature’s
God”; he is “one of the ‘people of the United States’” who lives on “the land of the
United States”—not the State of Nebraska—and he “has made his individual Political
Character and Status well known by recording the same in the Public Record of
Brown County, Nebraska.” Voss purports to bring this action pursuant to the United
States Constitution for the defendants’ violation of their oaths of office, alleging
“denial of political character and status recognition” by the defendants, who “are
charged with not only knowing the laws of the State of Nebraska and enforcing those
said laws . . . , but also in knowing to whom those said laws are applicable.” Voss
contends that the defendants “should know the laws of the State of Nebraska only
apply on the land of Nebraska with the consent of the ‘people of the United States,’”
and Plaintiff, who is one of the “people of the United States,” “does not consent to the
application of the laws of the State of Nebraska on the land of Nebraska in relation to
himself and his property.” (Filing No. 1, Complaint at CM/ECF pp. 7-8.)
Voss purports to bring three causes of action: (1) “denial of political character
and status recognition”; (2) “violation of the oaths of office”; and (3) “continuing
criminal enterprise” with a “pattern of racketeering activity” under “CIVIL RICO,”
18 U.S.C. § 1961, et seq., to violate the United States Constitution, the “Supreme Law
of the Land,” the Declaration of Independence, and the “Definitive Treaty of Peace,
1783.” Voss claims damages of approximately $722 million.
Voss alleges that certain defendants “invaded the land of Nebraska, without the
consent of the ‘people of the United States,’” and acted as follows:
•Brown County Deputy Sheriff Zack Welch arrested Plaintiff without probable
cause or a warrant and incarcerated him for 31 hours in the Brown County Jail
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when Plaintiff had not committed “any offense against the laws of the land of
Nebraska.” (Filing No. 1 at CM/ECF pp. 8-9.)
•Clerk of Brown County District Court Travis Hobbs, without probable cause,
“charged” Plaintiff with violating a Nebraska statute governing the return of
jury-duty questionnaires and ordered Plaintiff to show cause why he should not
be held in contempt of court when Plaintiff had not committed “any offense
against the laws of the land of Nebraska.” After a “trial,” the Nebraska Court
of Appeals “failed/refused to honor the political character and status of the
Plaintiff by refusing to dismiss the said Case.” (Filing No. 1 at CM/ECF pp.
8-9.)
•Long Pine Mayor Beverly Newport, without probable cause, “charged”
Plaintiff with a violation of Nebraska and/or Long Pine statutes regarding
“cleaning up his private property” and ordered Plaintiff to show cause why he
should not be held in contempt of court when Plaintiff had not committed “any
offense against the laws of the land of Nebraska.” After a “trial,” the Nebraska
Court of Appeals “failed/refused to honor the political character and status of
the Plaintiff by refusing to dismiss the said Case, for lack of in personam
jurisdiction.” (Filing No. 1 at CM/ECF p. 9.)
•Governor Pete Ricketts, Attorney General Doug Peterson, and Brown County
Sheriff Bruce Papstein failed to properly train and/or supervise Brown County
Deputy Sheriff Zack Welch regarding the “political character and status of ‘the
people of the United States’ operating on the land of Nebraska,” and they
should have known that Plaintiff’s “political character and status” prevented the
Nebraska Court of Appeals and Nebraska Supreme Court from exercising
personal jurisdiction over him. (Filing No. 1 at CM/ECF pp. 10-11; Filing No.
8 at CM/ECF p. 14.)

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II. STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e). The court must dismiss a complaint or any portion of it that states
a frivolous or malicious claim, that fails to state a claim upon which relief may be
granted, or that seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III. DISCUSSION
The basis of all of Plaintiff’s claims—that he is not a person over whom state,
county, and city officials and judges have the authority to apply the law—is similar
to arguments raised by “tax protesters, ‘constitutionalists,’ and others claiming to be
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operating under an alternative legal system,” Whitley v. Webs, No. 15-CV-3771 LB,
2015 WL 5184971, at *1 (N.D. Cal. Sept. 4, 2015), and such arguments have
consistently been rejected as frivolous. See, e.g., United States v. Studley, 783 F.2d
934, 937 n.3 (9th Cir. 1986) (criticizing appellant’s claim that she was not “taxpayer”
to whom Internal Revenue Code applied because she was “an absolute, freeborn and
natural individual”; noting that “[a]n individual is a ‘person’ under the Internal
Revenue Code,” arguments to the contrary “ha[ve] been consistently and thoroughly
rejected by every branch of the government for decades,” and “advancement of such
utterly meritless arguments is now the basis for serious sanctions imposed on civil
litigants who raise them”); United States v. Rice, 659 F.2d 524, 528 (5th Cir. 1981)
(noting the frivolousness of argument that appellant was not “person” required to file
income tax return under federal law); Lovell v. United States, 755 F.2d 517, 519-520
(7th Cir. 1984) (imposing sanctions against pro se plaintiffs for making frivolous
argument in bad faith that as “natural persons” they were “exempt from federal
taxation”); United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (“contention
that defendant was not an ‘individual’ under the Internal Revenue Code also is
frivolous”); Blanchette v. Soc. Sec. Admin., No. CIV.A. 13-12655-RGS, 2014 WL
667514, at *2 (D. Mass. Feb. 21, 2014) (referring to frivolous and “well-worn taxprotester arguments” and noting irony of plaintiff claiming he was not a “person”
subject to internal revenue tax, but attempting to recover damages as a “person” under
the Social Security Act); Jones vs. I.R.S., 2012 WL 5334631, *2 (D. Mont. Oct. 26,
2012) (argument that plaintiff was not “taxpayer” subject to federal taxation was
“without merit and . . . frivolous”).
Because all of Plaintiff’s claims are rooted in the idea that he is not an
individual to whom Nebraska law applies, Plaintiff’s complaints must be dismissed
as frivolous. Plaintiff shall not be given leave to file a fourth complaint in order to
amend these claims because such amendments would be futile. See Stricker v. Union
Planters Bank, 436 F.3d 875, 878 (8th Cir. 2006) (court may deny motion for leave
to amend if amendment would be futile).

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Accordingly,
IT IS ORDERED:
1.
Plaintiff’s Complaint (Filing No. 1), Amended Complaint (Filing No. 8),
and Second Amended Complaint (Filing No. 10) are dismissed as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i);
2.

All pending motions are denied as moot; and

3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 31st day of March, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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