PIERCE EL-BEY v. FLETCHER, et al

Filing 23

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 2/3/2012, ordering that Defendant Judge Dixon's motionfor extension of time to file answer or otherwise respond to the complaint until March 12, 20 12 (Docket No. 22 ) is GRANTED. FURTHER, that Defendants' motions to strike (Docket Nos. 19 , 21 ) are DENIED without prejudice as moot given the recommendation to dismiss all claims against these Defendants, and RECOMMENDING that Defendants ' motion to dismiss (Docket No. 5 ) be granted, that the action be dismissed sua sponte as to Judge Dixon, that Plaintiff's motion for order to show cause (Docket No. 8 ) be denied, and that this action be dismissed in its entirety due to Plaintiff's failure to state a claim upon which relief may be granted. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NOBLE TORNELLO FONTAINE
PIERCE EL-BEY,
Plaintiff,
v.
KIMBERLY M. FLETCHER,
JUDGE WALLACE WADE DIXON,
JAMES DOUG HENDERSON,
and MIA HOWELL,
Defendants.

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1:11CV901

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the motion to dismiss filed by Defendants
Kimberly Fletcher, James Doug Henderson, and Mia Howell. (Docket No. 5.) Plaintiff
responded to this motion by filing a “motion to show cause and for judgment on the
pleadings.” (Docket No. 8.) For the reasons stated herein, the Court concludes that
Defendants’ motion should be granted, Plaintiff’s motion should be denied, the claims
against Defendant Dixon should be dismissed sua sponte, and this action should be
dismissed.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff claims to be a “natural born aboriginal Washitaw de Dugdahmoundyah
Muur’s Indigenous People.” (Docket No. 1, Complaint (“Compl.”) at 2.) He is proceeding

pro se in this civil rights action. Plaintiff is a frequent litigator. He names as Defendants a
now-retired United States Magistrate Judge for this district, The Honorable Wallace Dixon;
the state district attorney for Guilford County, Mr. James Doug Henderson; a state court
judicial official, District Judge Kimberly M. Fletcher; and a state assistant district attorney,
Ms. Mia Howell.
Plaintiff’s complaint includes thirty causes of action. Plaintiff captions his complaint
as an “action of trespass” and “action of genocide.” (Compl. at 1.) Many of Plaintiff's
claims are nonsensical, however the Court liberally construes Plaintiff's complaint to make
the following allegations. He claims that the Defendants have deprived him of his rights
which are protected by treaties of the United States and the United Nations Declaration on
the Rights of Indigenous Peoples. (Id. at 3.) Defendants have allegedly incited racial and
ethnic discrimination against the Moorish people, of which he is a member. (Id.) Defendants
are “continually committing Genocide as well as Trespass” against the Moors, according to
Plaintiff. (Id.)
Plaintiff claims that on September 20, 2011, police officer E. Crozier filed fraudulent
charges against him for resisting a public officer. (Id. at 4.) Defendant Judge Fletcher was
the presiding district court judge in state court for Plaintiff’s case. (Id.) Defendant Howell
prosecuted the case against Plaintiff on behalf of Mr. Henderson’s office. (Id. at 5.)
Defendant Judge Fletcher allegedly had the courtroom deputy seize Plaintiff’s tape recorder
during the proceeding. (Id.) Plaintiff claims that the judge’s statement that recording was
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not allowed was “false.” (Id.) Plaintiff also claims that Judge Fletcher improperly dismissed
his unspecified motions. (Id.) After an exchange between Plaintiff and Judge Fletcher, she
ordered Plaintiff to be placed in a holding cell for 20 minutes. (Id. at 6.) Prosecutor Howell
allegedly made statements in court such as that the Moors “need to follow the Laws of
United States or go back to their own land.” (Id.) Plaintiff claims that such statements
“incite racial and ethnic discrimination” against the Moors. (Id.) Finally, Plaintiff alleges
that Judge Fletcher “made [a] fraudulent entry” and ordered that he be placed on probation
for 18 months and complete community service and pay court costs and other fees. (Id.)
Plaintiff attaches copies of deeds of trust in Defendant Judge Fletcher’s name which
supposedly show that she satisfied notes in an unusual “time line” which suggests that she
was “taking special favor.” (Id. at 7.)
Plaintiff alleges that Defendant Judge Dixon has incited racial hatred against the
Moors because he arranged to preside over “every case” that a Moor has filed in this district
and in one case found the Moors’ claim, that they are not subject to federal and state law, to
be “absurd.” (Id. at 8.) Plaintiff also alleges that Defendant Judge Dixon has mistreated the
Moors in these cases and concludes that Judge Dixon “may have possibly received and/or is
receiving monetary funds or special favor from each Defendant(s).” (Id. at 9.)
The specific causes of action raised in Plaintiff’s complaint will be discussed below.
Plaintiff seeks damages and injunctive relief. (Id. at 16.) Defendants are sued in their
individual and official capacities.
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DISCUSSION
A.

Standard
A plaintiff fails to state a claim upon which relief may be granted under Fed. R. Civ.

P. 12(b)(6) when the complaint does not “contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

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129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.” Iqbal, 129 S. Ct. at 1949.
B.

Absolute Immunity from Damages
Defendants Howell, Henderson, and Fletcher move to dismiss all of Plaintiff’s claims

against them because they are entitled to absolute immunity from suit in their personal or
individual capacities. (Docket No. 6 at 7-10.) Judges such as Judge Fletcher have absolute
immunity from damages for their judicial actions. Stump v. Sparkman, 435 U.S. 349 (1978).
Because all of the allegations against Defendant Judge Fletcher are based upon her actions
as the presiding judge in Plaintiff's criminal case, she is entitled to absolute immunity. Id.
Defendants Henderson and Howell are North Carolina state prosecutors. Plaintiff
fails to allege any facts against Defendant Henderson. All of the allegations against his
subordinate, Defendant Howell, are based upon her actions as the prosecutor in Plaintiff's
criminal case. Prosecutors have absolute immunity for their participation in the judicial
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process. Buckley v. Fitzsimmons, 509 U.S. 259 (1993); see Lyles v. Sparks, 79 F.3d 372 (4th
Cir. 1996) (prosecutor's decision of whether and when to prosecute is protected by absolute
immunity). Defendants Howell and Henderson are therefore entitled to absolute immunity
from damages.
Plaintiff’s complaint may or may not have been properly served upon Defendant
Judge Dixon, a now retired United States Magistrate Judge. Acting through the United States
Attorney for this district, he has filed a motion for extension of time to answer or otherwise
respond, and his motion will be granted. It is clear that all claims against him are legally
frivolous. All of the allegations against Defendant Judge Dixon are based upon his judicial
actions in presiding over Plaintiff's cases or cases involving other Moorish litigants.
(Compl.) Judge Dixon is therefore entitled to absolute immunity from damages for his
actions.1 See Stump, 435 U.S. 349.
C.

Injunctive Relief
Plaintiff seeks injunctive relief against Defendants which would not be barred by their

immunity. Specifically, Plaintiff seeks an order that he not be "detained" and that his rights
under the declarations of the United Nations not be deprived. (Compl. at 16.) He also

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Although this recommended dismissal of claims against Defendant Dixon is at this
stage of the case a sua sponte act, Plaintiff was advised of his right to respond to the absolute
immunity argument raised by the other Defendants and, in fact, did respond. (Docket No.
8.) The same legal argument is applicable to Defendant Judge Dixon. Therefore, Plaintiff
was given an opportunity to respond to this issue prior to the recommendation of dismissal.

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requests that each case involving a Moor be re-opened and investigated due to alleged
conflicts of interest, prejudice, fraudulent statements, and other defects. (Id.)
Plaintiff's request not to be "detained" is not a request for a proper injunction. This
request is impermissibly broad and, indeed, is so imprecise that a proper injunction could not
be fashioned. Such an injunction also is not supported by the factual allegations made by
Plaintiff.
Plaintiff has no rights under the declarations of the United Nations which would
support injunctive relief. This Court and other courts have repeatedly found that Plaintiff's
theories of rights under such declarations or treaties lack merit. See, e.g., El-Bey v. City of
Charlotte, No. 3:11-CV-0131, 2011 WL 4757653 (W.D.N.C. May 17, 2011); El-Bey v. City
of Greensboro, No. 1:10CV291, 2010 WL 3242193 (M.D.N.C. Aug. 16, 2010); El-Bey v.
North Carolina Bd. of Nursing, No. 1:09CV753, 2009 WL 5220166 (M.D.N.C. Dec. 31,
2009).
Finally, Plaintiff's request that each case involving a Moor be re-opened is not
supported by his speculative allegations. It is also an exceedingly vague request.
Accordingly, Plaintiff's request for injunctive relief should also be dismissed.
D.

Official Capacities
Plaintiff sues Defendants in both their official and individual capacities. Because

Defendants Henderson, Howell, and Fletcher are state employees, the official capacity suit
against them is in reality a suit against the State. Kentucky v. Graham, 473 U.S. 159, 165-66
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(1985). Because the State has not consented to this action, the Eleventh Amendment bars
any damages claims against the State. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). In
addition, an official capacity suit against Defendant Judge Dixon, a federal employee, is
subject to the Federal Tort Claims Act and its requirement of exhaustion of administrative
remedies. See Sullivan v. United States, 21 F.3d 198, 203-06 (7th Cir. 1994). Plaintiff has
not shown that he has properly exhausted these remedies. Accordingly, all claims against all
Defendants in their official capacities should be dismissed.
E.

Plaintiff's Causes of Action
Due to the defects discussed above, the Court need not go into detail on every cause

of action raised by Plaintiff. Many of his causes of action are based upon alleged violations
of federal criminal statutes–statutes which give no indication that a private right of action
exists pursuant to them. (Causes of action 5, 8, 11, 12, 17, 18, 19, 20, 21, 22, 25, 26.)
Plaintiff must consult with the United States Attorney’s Office, and that office must decide
whether to prosecute for a violation of such statutes. See Doe v. Broderick, 225 F.3d 440,
447-448 (4th Cir. 2000) (“The Supreme Court historically has been loath to infer a private
right of action from ‘a bare criminal statute.’”) (quoting Cort v. Ash, 422 U.S. 66, 80 (1975)).
Therefore, these causes of action should also be dismissed because they fail to state a claim
upon which relief may be granted.
Plaintiff bases a number of his causes of action upon declarations of the United
Nations. (Causes of action 1, 2, 4, 10, 15, 23, 24.) Plaintiff has no right of action pursuant
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to such declarations. El-Bey v. North Carolina Bd. of Nursing, 2009 WL 5220166. These
causes of action should be dismissed on this ground, as well.
The remainder of Plaintiff’s causes of action (Causes of action 3, 6, 7, 9, 13, 14, 16,
27, 28, 29, 30) fail to state a claim for relief. The bases for these causes of action are either
not apparent or the claims lack a sufficient factual basis for this Court to reasonably infer that
any Defendant could be liable for the misconduct alleged. See Iqbal, 556 U.S. 662.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendant Judge Dixon’s motion
for extension of time to file answer or otherwise respond to the complaint until March 12,
2012 (Docket No. 22) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motions to strike (Docket Nos. 19,
21) are DENIED without prejudice as moot given the recommendation to dismiss all claims
against these Defendants.
IT IS RECOMMENDED that Defendants' motion to dismiss (Docket No. 5) be
granted, that the action be dismissed sua sponte as to Judge Dixon, that Plaintiff's motion for
order to show cause (Docket No. 8) be denied, and that this action be dismissed in its entirety
due to Plaintiff’s failure to state a claim upon which relief may be granted.

/s/ P. Trevor Sharp
United States Magistrate Judge

Date: February 3, 2012
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