Smith v. Kelley
Filing
6
ORDER - For the reasons set forth above, the Complaint is sua sponte dismissed with prejudice. The Clerk of the Court is directed to close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 5/24/2012. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MATTHEW R. SMITH, Ex Rel. KASIIN
ALI BEY,
Plaintiff,
-against-
ORDER
12-CV-2319(JS)(AKT)
CHRIS ANN KELLY,
Defendant.
----------------------------------X
APPEARANCES:
For Plaintiff:
Matthew R. Smith, Ex Rel.
Kasiin Ali Bey, Pro Se
P.O. Box 1624
Central Islip, New York 11722
For Defendant:
No Appearance
SEYBERT, District Judge:
Before the Court is the fee paid Complaint of pro se
plaintiff Matthew R. Smith, ex rel. Kasiin Ali Bey (“Plaintiff”)
filed pursuant to 42 U.S.C. § 1983 against the defendant, Hon.
Chris
Ann
District
Kelley,
Court,
Acting
10th
County
Judicial
Court
District
Judge,
(the
Suffolk
County
“Defendant”).1
Notwithstanding Plaintiff’s payment of the filing fee, for the
reasons that follow, the Plaintiff’s Complaint is sua sponte
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
1
The correct spelling of Judge Kelley’s last name includes the
letter “e” before the “y”. Plaintiff is inconsistent in the
spelling of this name, sometimes it is “Kelly” and elsewhere it
is “Kelley.” To avoid any confusion, the Court corrects the
spelling of Judge Kelley’s name in the caption and the Clerk of
the Court is directed to so amend the caption.
BACKGROUND
Plaintiff, who is alleged to be of Moorish-American
nationality, seeks to recover monetary damages allegedly incurred
as a result of being ordered by Judge Kelley to submit to a mental
health examination on May 11, 2012. As the Court can best discern,
Plaintiff is defending himself in an on-going criminal prosecution
in the Suffolk County District Court.
According to the Complaint,
during an appearance before Judge Kelley on May 4, 2012, Plaintiff
was ordered to undergo a mental evaluation.
Plaintiff describes
that, under the authority of the “Zodiac Constitution,” and in
accordance with the “Peace and Friendship Treaty of 1836,” the
state court lacks jurisdiction over him given that he is a MoorishAmerican.
According to the Complaint, Plaintiff requested that
Judge Kelley provide Plaintiff with a “citation of authority to
presume jurisdiction over a Moorish American and to state the
court’s jurisdiction for the record.”
Compl. at ¶ 5.
Plaintiff
alleges that Judge Kelley failed to do so and therefore now
Plaintiff “demand[s] [that] all proceedings cease until CHRIS ANN
KELLEY properly established jurisdiction for the record.”
Compl.
at ¶ 6. Plaintiff seeks to recover $100,000.00 for “libel” as well
as $800.00 for “filing, service and handling” and “daily interest
for enduring encumbrance of the present libel” of $1,000.00 per
day.
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DISCUSSION
I.
Standard of Review
A district court is required to dismiss a complaint if
the action is frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against a
defendant who is immune from such relief.
See 28 U.S.C. §
1915(e)(2)(B)(i-iii); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007).
Regardless of whether a plaintiff has paid the filing fee,
a district court should dismiss a complaint, sua sponte, if it
determines that the action is frivolous.
Fitzgerald v. First East
Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000).
The Court is required to dismiss the action as soon as it makes
such a determination.
28 U.S.C. § 1915A(a).
An action is “frivolous” when either: (1) “‘the factual
contentions are clearly baseless,’ such as when allegations are the
product of delusion or fantasy,” or (2) “the claim is ‘based on an
indisputably meritless legal theory.’” Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal citations
omitted).
It is axiomatic that pro se complaints are held to less
stringent standards than pleadings drafted by attorneys and the
Court
is
liberally,
required
to
read
the
plaintiff’s
pro
se
complaint
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
167 L. Ed. 2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); Chavis v. Chappius,
3
618 F.3d 162 (2d Cir. 2010), and to construe them “‘to raise the
strongest arguments that [they] suggest[].’”
Chavis, 618 F.3d at
170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010)).
Moreover, at the pleadings stage of the proceeding, the
Court must assume the truth of “all well-pleaded, nonconclusory
factual allegations” in the complaint.
Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868
(2009)); see, also Jackson v. Birmingham Board of Education, 544
U.S. 167, 171, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).
Further,
“subject
matter
jurisdiction,
because
it
involves the court’s power to hear a case, can never be forfeited
or waived.”
United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct.
1781, 152 L. Ed. 2d 860 (2002). The subject matter jurisdiction of
the federal courts is limited.
Federal jurisdiction exists only
when a “federal question” is presented (28 U.S.C. § 1331), or where
there is “diversity of citizenship” and the amount in controversy
exceeds $75,000.00 (28 U.S.C. § 1332).
There is an independent
obligation for a federal court to “determine whether subject matter
jurisdiction exists, even in the absence of a challenge from any
party.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citation
omitted).
When a federal court concludes that it lacks subject
matter jurisdiction, it must dismiss the complaint in its entirety.
Fed. R. Civ. P. 12(h)(3).
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II.
Application
Having carefully reviewed Plaintiff’s Complaint, the
Court finds that it fails to state a plausible claim.
As a
threshold matter, Plaintiff has not properly invoked this Court’s
subject matter jurisdiction.
Plaintiff has not alleged a federal
question nor has he satisfied the diversity requirement because
Plaintiff, an alleged New York resident, seeks to sue a New York
Defendant, namely Judge Kelley, Acting County Court Judge, Suffolk
County District Court, 10th Judicial District.
Even if the Court’s subject matter jurisdiction were
established, which it is not, the Complaint must be dismissed
because it is frivolous.
Liberally read, see Hughes v. Rowe, 449
U.S. 5, 9, 101 S. Ct. 173, 176, 66 L. Ed. 163 (1980), the gravamen
of
Plaintiff’s
Complaint
is
that
he
is
not
subject
to
the
jurisdiction of the New York state court and therefore does not
have to comply with the order entered by Judge Kelley.
The law is
clear that Moorish Americans, like all citizens of the United
States, are subject to the laws of the jurisdiction in which they
reside.
See, e.g., Bey v. Jamaica Realty, No. 12-CV-1241(ENV),
2012 WL 1634161, *1 n. 1 (E.D.N.Y. May 9, 2012) (citing Bey v. Am.
Tax Funding, No. 11–CV–6458, 2012 WL 1495368, at *6 (W.D.N.Y. Apr.
27, 2012); Gordon v. Deutsche Bank, No. 11–CV–5090, 2011 WL
5325399, at *1 n. 1 (E.D.N.Y. Nov. 3, 2011); see, also Bey v. City
of Rochester, 2012 WL 1565636, at *8 (W.D.N.Y. Apr. 30, 2012)
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(citing El–Bey v. North Carolina, No. 5:11-CV-0423FL, 2012 WL
368374, at *2 (E.D.N.C. Jan. 9, 2012) (unpublished) (“[A]ny claim
based on the contention that Plaintiffs are not subject to the laws
of North Carolina because of their alleged Moorish nationality and
the Treaty of Peace and Friendship of 1787 is frivolous.”),
recommendation adopted, 2012 WL 368369 (E.D.N.C. Feb. 3, 2012)
(unpublished); Bey v. American Tax Funding, No. 11-CV-6458(CJS),
2012 WL 1498368, at *6 (W.D.N.Y. Apr. 27, 2012) (“[Plaintiffs’]
purported status as a Moorish-American citizen does not enable him
to violate state and federal laws without consequence.”); Gordon v.
Deutsche Bank Nat. Trust Co., No. 11-CV-5090(WFK), 2011 WL 5325399,
*1, n. 1 (E.D.N.Y. Nov. 3, 2011) (“Plaintiff’s suggestion that as
a member of the ‘Moorish-American” nation he is immune from the
laws of the United States is misguided”) (citing Bey v. Bailey, No.
09-CV-8416,
2010
WL
1531172,
at
*4
(S.D.N.Y.
Apr.15,
2010)
(“petitioner's claim that he is entitled to ignore the laws of the
State of New York by claiming membership in the ‘Moorish–American’
nation is without merit . . . .”) (add’l citation omitted).
Because the Court is required to dismiss a civil action
“at any time of the court determines that . . . the action . . . is
frivolous,”
Plaintiff’s
Complaint
is
dismissed.
The
instant
Complaint is clearly frivolous given Plaintiff’s claim that he is
not subject to the jurisdiction of the New York state court because
he is a Moorish American.
Neitzke v. Williams, 490 U.S. 319, 325,
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109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989) (a claim is “frivolous”
if it lacks an arguable basis in either law or fact).
Clearly, the
allegations in the instant Complaint are based upon an indisputably
meritless legal theory and are thus dismissed as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)B)(i).
Even
if
the
Plaintiff’s
claims
were
not
frivolous,
Plaintiff cannot recover damages from the Defendant, a sitting New
York State Court Judge, Suffolk County District Court, since as a
judge, she is entitled to absolute judicial immunity as well
Eleventh Amendment Immunity.
Mahapatra v. Comstock, 141 F.3d 1152
(2d Cir. 1998) (“[T]he district court properly dismissed the claims
for damages based on absolute immunity [because] [j]udges are
shielded
from
liability
for
civil
damages
for
judicial
acts
performed in their judicial capacities.”) (citing Mireles v. Waco,
502 U.S. 9, 11-12, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991));
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-55, 116 S.
Ct. 1114, 134 L. Ed. 2d 252 (1996); Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67
(1984).
Given that the Complaint is based on an indisputably
meritless legal theory, the Court declines to afford Plaintiff
leave to amend his Complaint, as any amendment would be futile.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
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this Order would not be taken in good faith and therefore in forma
pauperis status is denied for the purpose of any appeal.
See
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8
L. Ed. 2d 21 (1962).
CONCLUSION
For the reasons set forth above, the Complaint is sua
sponte dismissed with prejudice.
The Clerk of the Court is
directed to close this case.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
May
24
, 2012
Central Islip, New York
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