Borders El Bey v. Doe #31 et al

Filing 4

DECISION AND ORDER re 1 Petition for Writ of Habeas Corpus filed by Michael Borders El Bey. Plaintiff's complaint in this case is frivolous and is dismissed without prejudice to filing a cognizable complaint. Further, the Clerk is to return his subsequently mailed papers containing similar frivolous matters without filing them in this, or any other case now in the Court. Finally, the Clerk will mail to Plaintiff a form civil rights complaint and form motion for poor person status, whic h Plaintiff may file within 30 days of the date of this Decision and Order. Should Plaintiff fail to file any new complaint within 30 days of the date of this Decision and Order, then the dismissal will ripen into with preju-dice.The Court hereby cer tifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the Order and Judgment of entered herein would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge v. United States , 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Proce-dure. Signed by Hon. Charles J. Siragusa on 9/7/17. Copy of this Decision and Order and the NEF mailed to pro se plaintiff at ERIE COUNTY HOLDING CENTER, 40 Delaware Avenue, Buffalo, NY 14202 (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL BORDERS EL BEY,
Plaintiff,
-vs-

DECISION & ORDER
17-CV-6565-CJS

JOHN DOE #31 et al.,
Defendants.

INTRODUCTION
Siragusa, J. Plaintiff pro se has filed what he styles as a petition for a writ of habeas corpus, as well as a memorandum. Because his filings raise the question of
whether this is a “sovereign citizen” claim, the Court addresses it sua sponte in accordance with the inherent right to control its docket. For the reasons stated below, the
complaint is dismissed without prejudice to refiling within 30 days.
FACTUAL BACKGROUND
On August 14, 2017, Plaintiff filed a handwritten paper titled, “Notice of Removal
Based on Diversity of Citizenship, Writ of Habeas Corpus According to 28 U.S.C.
§ 1331.” Notice, ECF No. 1. The first portion of the filing, which the Court transcribes
here only with great difficulty due to the small, cramped writing, and nonsensical stream
of consciousness, states as follows:
I am claimant Michael Borders El Bay (creditor) and Heir here in the land
of the Moors In Proprio Persona (sui juris) Ex Rel [MICHAEL V. BORDERS] 14th Amendment Person as Corporation = via Fraudulent Construct/Birth Certificate which is an fraudulent cesta que (vie) Trust created
by hospitals and Foreign State Corporations to Escheat via Hypothecation
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= through the use of fraudulent constructs: SSN #, drivers license, marriage license, certificate of title, mortgages, credit cards etc. The claimant
who is an sovereign Aboriginal Indigenous Moorish American National
(Natural Flesh and Blood Being not lost at sea/lost vessel according to
Admiralty Law/14th Amendment & fraudulent Corpse = the man of the
straw/[MICHAEL V BORDERS] name in all caps/Corporation which is in
violation of the Treaty of Peace and Friendship 1787-1836-1985 (last Ratified by U.S. Federal Corporation (28 USC 3002 15(A) President Reagan
which is an amity and Commerce contract between the Moroccan/American Empire 1787-1836 and the subordinate union states/United
States Republic which was converted into the Federal Corporation/ “Democracy” without the Authority to do so via the Act of 1871 coup d’état and
the above listed criminals are also in violation of the Rights of Indigenous
People Act signed by U.S. President Barack Obama 2010-2011 as a
measure to help with the Decolonization Act 1960. with the hope of uplifting fallen “Humanity” those who are branded Black, Negro, Colored, Indian and African-American who have been held in “Peonage” since
1492/1492. Therefore the claimant comes now an submit this Habeas
Corpus for special proceeding according to Article III, Sec II and Article VI
of the United States Republic Constitution 1789 for redress as follows:
1. On June 14, 2017 the Michael Borders El Bay was arbitrarily Arrested/Human Trafficking by the City of Buffalo Corporation Mercenaries
(commercial) After the claimant Michael Borders El Bay Made his Status
and Estate known during false arrest and prior on Numerous false arrest
and on Affidavit of Truth’s and Affidavit of Facts, And the Foreign Commercial Mercenaries (those who deem themselves Police) continued to
force their corporation statues, codes and ordinances on the claimant
through force of arms (threat, duress and coercion) which is a violation of
the Treaty Contract at Article 6 of the United States Republic Constitution,
in violation of the Right of Indigenous People’s Act, in violation of 18 USC
241, 242, in violation of 18 USC 1341 (Fraud), in violation the “Clearfield
Doctrine” in violation of their commander in Chief Pope Francis Civil Order-2014 and Motu Proprio September 2013 for all said violators are part
of the Roman Curia, and who are in violation of Human Trafficking, Extertion [sic] and Exploiting the claimant Michael Borders El Bay, therefore the
claimant demand 5 million in federal notes for compensatory damages
and 5 million federal notes/private commercial papers in you of lawful
Money punitive damage per each Violator/Person - in their private and
corporate capacity.

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2. On June 15, 2017 at approx. 9:45 AM havin [sic] been detained/Human
Trafficked overnight in the Foreign City of Buffalo Corporation Jail the
claimant was Human Trafficked to the Foreign Buffalo City Commercial
Court in violation According to Treaty of Amity and Commerce contract
and According to Federal U.S. Corporation Rules: 27 CFR 72.11 = all U.S.
civil and crimes are Contractual Agreements, the claimant made a Speacial [sic] Appearance confronting my honor Diane Y. Wray where he the
claimant placing his Status and Estate on the record along with a Challenge of Jurisdiction that was not heard by the Fictitious Commercial
Court, but instead the claimant’s challenge of Jurisdiction was constantly
interrupted, interfered [sic] with by a team of practiced criminals, with the
sole purpose of doctrine up the records (especially the Foreign Court reported). The Foreign Commercial Court then proceeded where they did
not have authority or Jurisdiction to do so and scheduled another Foreign
Fictitious Commercial Court date for June 20, 2017 at approx. 9:30 AM.
also in violation of slander. . . .
3. The claimant Michael Borders El Bey asserts that on June 15, 2017, he
was detained/ Human Trafficked at the Erie County Sheriff/Commercial
Mercenary Holding Center Corporation. Therefore, Timothy B. Howard
and all above Mercenaries [Deputies] are in violation of Article 3, Section 1
and Article 6 of the United States Republican Constitution 1789. Contract
law/uniform commercial codes, 9th Amendment (right to contract), 27
C.F.R. 72.11, 4th and 5th Amendment, State of New York Corporation
Const. 5th Amendment, Human Trafficking, Extortion, Exploitation, Pope
Francis Civil Order-2014 Motu Proprio….
Plaintiff has not paid the filing fee, nor has he requested to proceed in forma pauperis.
Subsequently, he mailed to the Court additional papers similar to the one filed in this
case
STANDARDS OF LAW
Inherent Right to Dismiss Frivolous Complaints
A district court of the United States has the inherent authority to dismiss a frivolous complaint sua sponte “even when the plaintiff has paid the required filing fee.”
Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000).
“[A] complaint, containing as it does both factual allegations and legal conclusions, is
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frivolous where it lacks an arguable basis either in law or in fact.”Neitzke v. Williams,
490 U.S. 319, 325 (1989).
“[A] court may dismiss a claim as factually frivolous only if the facts alleged are
clearly baseless, * * * a category encompassing allegations that are fanciful, * * *,
fantastic, * * * and delusional * * *.” Denton v. Hernandez, 504 U.S. 25, 32–33 (1992)
(quotations and citations omitted). “[A] finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or the wholly incredible, whether
or not there are judicially noticeable facts available to contradict them.” Denton, 504
U.S. at 33. A court may also dismiss a claim as frivolous “if it is based on an ‘indisputably meritless legal theory.’ ” Montero v. Travis, 171 F.3d 757, 759–60 (2d Cir.1999)
(quoting Neitzke, 490 U.S. at 327).
Requirements of a Cognizable Claim
In order to state a cognizable claim:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a Plaintiff’s obligation
to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (“To survive dismissal, the
plaintiff must provide the grounds upon which his claim rests through factual allegations
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sufficient ‘to raise a right to relief above the speculative level.’”) (quoting Bell Atl. Corp.
v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating
that Bell Atl. Corp. v. Twombly adopted “a flexible ‘plausibility standard,’ which obliges a
pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible[,]” as opposed to merely conceivable.).
When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the
proponent of the complaint. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied,
531 U.S. 1052 (2000). On the other hand, “[c]onclusory allegations of the legal status of
the defendants’ acts need not be accepted as true for the purposes of ruling on a
motion to dismiss.” Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.
1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3
(2d Cir.1994)).
Constitutional Torts
Plaintiff appears to allege, in part, that the defendants have committed constitutional torts against them. The Constitution has no built-in enforcement mechanism.
Therefore, in order to bring a Constitutional action against state actors under the
Constitution, a plaintiff must meet the requirements of 42 U.S.C. § 1983. To state a
claim under § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct

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deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of
the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
ANALYSIS
Plaintiff’s filings make little sense. He appears to be attempting to allege false
imprisonment, but his papers contain strings of incoherent phrases with little or no
meaning either independently, or taken together. He references “Moorish Americans”
and uses “El Bey” after his name. The District of New Jersey compiled a comprehensive
history of Moorish claims in the federal courts in Moorish Sci. Temple of Am. 4th & 5th
Generation v. Superior Court of New Jersey, No. CIV.A. 11-7418 RBK, 2012 WL
123405, at *1 (D.N.J. Jan. 12, 2012). The solution adopted by that court is one that the
Court will apply here. First, the Court determines that the current filings in this case, and
the subsequently-mailed papers in the same format containing similar strings of
incoherent phrases, are frivolous. Second, as Plaintiff has neither paid the filing fee, nor
requested poor person status, his frivolous complaint, ECF No. 1, is dismissed without
prejudice. Third, the Court directs the Clerk to return the undocketed papers to Plaintiff,
along with a copy of this Decision and Order.
CONCLUSION
For the reasons stated above, Plaintiff’s complaint in this case is frivolous and is
dismissed without prejudice to filing a cognizable complaint. Further, the Clerk is to
return his subsequently mailed papers containing similar frivolous matters without filing
them in this, or any other case now in the Court. Finally, the Clerk will mail to Plaintiff a
form civil rights complaint and form motion for poor person status, which Plaintiff may
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file within 30 days of the date of this Decision and Order. Should Plaintiff fail to file
any new complaint within 30 days of the date of this Decision and Order, then the
dismissal will ripen into “with prejudice.”
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from the Order and Judgment of entered herein would not be taken in good faith, and
leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge
v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor
person should be directed, on motion, to the United States Court of Appeals for the
Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
Dated: September 7, 2017
Rochester, New York
ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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