Valery v. US House of Representative et al

Filing 7

MEMORANDUM AND ORDER- Pursuant to 28 U.S.C. §1915(e)(2), Plaintiff's complaint and the amendment thereof shall be dismissed with prejudice. A separate judgment will be entered in accordance with this memorandum and order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEAN F. VALERY,
Plaintiff,
v.
US HOUSE OF
REPRESENTATIVE, EVERY
MEMBER OF THESE
CONSTITUENT ORGANS,
PERSONALLY, US SENATE,
EVERY MEMBER OF THESE
CONSTITUENT ORGANS,
PERSONALLY, THE WHITE
HOUSE, EVERY MEMBER OF
THESE CONSTITUENT ORGANS,
PERSONALLY, NEBRASKA
STATE LEGISLATURE, EVERY
MEMBER OF THESE
CONSTITUENT ORGANS,
PERSONALLY, and NEBRASKA
GOVERNMENT, EVERY
MEMBER OF THESE
CONSTITUENT ORGANS,
PERSONALLY,
Defendants.

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8:14CV146

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on April 29, 2014. (Filing No. 1).
The court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 5.)
Plaintiff filed a “supplement” to his complaint on May 22, 2014. (Filing No. 6). The
court now conducts an initial review of the Complaint and the subsequently filed
“supplement” to determine whether summary dismissal is appropriate under 28 U.S.C.
§ 1915(e)(2).

I. SUMMARY OF COMPLAINT
Plaintiff Jean Valery, apparently a French citizen, resided in the United States
from August of 1999 until November 3, 2008. (Filing No. 6 at CM/ECF p. 31.)
During all or part of that time he owned and operated The Bread Oven, Inc. Plaintiff
states the Nebraska Department of Revenue and the Internal Revenue Service are
seeking collection of back taxes Valery owes, presumably from the operation of his
business.
Valery primarily uses his complaint to express his displeasure with the United
States of America’s economic policies which, he argues, unfairly favor salaried
employees over entrepreneurs. Specifically, he alleges the United States and the State
of Nebraska “oppos[e] the freedom of enterprise and its massive job creation” and the
“economic and social leadership” have “abuse[d] their constituent powers . . . to the
detriment of the American people and U.S. residents.” (Filing No. 6 at CM/ECF pp.
4 & 16.) Valery asserts he was forced to sell his business for $12,000 and return to
France due to these policies despite the fact he created jobs and economic impact for
Nebraska. He requests relief in the amount of 3 billion Euros or .2% of the annual
United States Gross Domestic Product.
II. APPLICABLE LEGAL STANDARD
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof 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
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claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (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.”). Regardless of whether a plaintiff is represented or is
appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to state
a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). A pro se
plaintiff’s allegations must be construed liberally. Burke v. North Dakota Dep’t of
Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
III. DISCUSSION OF CLAIMS
Very liberally construed, Plaintiff appears to be asserting a claim that certain
unnamed laws and policies of the United States and Nebraska violate the equal
protection clause of the Fifth Amendment because these unnamed laws unfairly
disadvantage business owners. However, Plaintiff has not identified any specific state
or federal laws that he claims directly violate his right to equal protection. Rather his
complaint only addresses laws and United States economic policy in general.
Accordingly, Plaintiff has fallen well short of providing a sufficient factual basis for
a claim based on equal protection.
To the extent he is attempting to allege that specific actions by the United States
government and the State of Nebraska have violated his constitutional rights, those
claims also fail. The United States and its branches of government enjoy immunity
from suit unless otherwise waived. See F.D.I.C v. Meyer, 510 U.S. 471, 475 (1994).
Likewise, the State of Nebraska and its government have sovereign immunity from
legal action. Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003) (internal citations
omitted).

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Plaintiff also names every member of the United States Senate, the United
States House of Representatives, the White House, the Nebraska State Legislature, and
the Nebraska Government in their individual capacities. While federal and state
officials can be sued in their individual capacities under certain circumstances,1 the
Plaintiff indicates he would like to sue individual state and federal legislators. To the
extent Plaintiff is complaining of acts carried out while they performed legitimate
legislative activities, state and federal legislators enjoy immunity from suit. See
Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Dombrowski v.
Eastland, 387 U.S. 82 (1967); Bogan v. Scott-Harris, 523 U.S. 44 (1998). Plaintiff
has provided no facts that any specific member of the named legislative bodies
engaged in activity that impacted him directly or that would not qualify for immunity
from suit.
Finally, Plaintiff acknowledges he owes several thousand dollars to the Internal
Revenue Service and the Nebraska Department of Revenue. To the extent his
complaint could be interpreted as a challenge to those respective tax assessments, his
claim also fails as a matter of law because he has made no indication he exhausted his
administrative remedies. See Porter v. Fox, 99 F.3d 271 (8th Cir. 1996).
While the court is mindful it must construe pro se complaints liberally and pro
se litigants should be afforded the opportunity to amend their pleadings, the court “has
the unusual power to pierce the veil of the complaint’s factual allegations and dismiss
those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490
U.S. 319, 327 (1989). That is, where the claim is clearly frivolous the court may
dismiss a claim prior to service of process. See Porter, 99 F.3d at 273-74; Williams
v. Willits, 853 F.2d 586, 588-89 (8th Cir. 1988).

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See 42 U.S.C. § 1983; Schweiker v. Chilicky, 487 U.S. 412 (1988); Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
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In this case, Plaintiff’s main concern appears to be the number of hours he
worked as a business owner in comparison to the amount of profit the business
generated. Apparently, the United States’ and State of Nebraska’s respective tax
policies are to blame. He does not identify any specific laws that he believes led to
the failure of his business. And, as noted above, he cannot sue federal and state
legislators for acts carried out while they perform legitimate legislative duties. His
rambling manifesto about the plight of business owners in the United States and how
those problems should be remedied, is wholly void of facts sufficient to state a cause
of action and is completely frivolous.
Accordingly,
IT IS ORDERED that:
1.
Pursuant to 28 U.S.C. §1915(e)(2), Plaintiff’s complaint and the
amendment thereof shall be dismissed with prejudice.
2.
A separate judgment will be entered in accordance with this
memorandum and order.
DATED this 23rd day of September, 2014.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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