PIERCE EL-BEY v. STATE OF NORTH CAROLINA

Filing 61

AMENDED MEMORANDUM, OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 02/24/2014. Amended to correct clerical error on Page 9, see footnote 1. (Israel, Lisa)

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

TORNELLO FONTAINE PIERCE
EL-BEY,
Plaintiff,
v.
STATE OF NORTH CAROLINA,
et al.,
Defendants.

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1:13CV285

AMENDED MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Tornello Fontaine Pierce El-Bey (a/k/a Noble Man
Tornello Fontaine: Pierce El-Bey) (hereinafter, “Plaintiff”) has
filed a pro se Complaint against twenty-seven defendants, all
named in their individual and official capacities. (Complaint
(“Compl.”) (Doc. 1).)

Plaintiff’s Complaint alleges twenty-

three separate causes of action and seeks, among other remedies,
general damages in the amount of $40,000,000 from Defendants,
collectively.

(Id. at 20-25.)

Plaintiff further demands a

“GRAND JURY Trial of 12 member(s) of Washitaw Mu’urs Empire.”
(Id. at 26.)
Defendants the State of North Carolina, Honorable Doug
Henderson, Guilford County District Attorney, ADA William Sean
Reavis, Honorable R. Andrew Murray, and Mecklenburg County

District Attorney have collectively filed a motion to dismiss.
(Doc. 5.)

Defendant Mecklenburg County has filed a separate

motion to dismiss.

(Doc. 13.)

Defendants Betty J. Brown, David

Churchill, John O. Craig, III, and Thomas G. Foster, Jr., have
filed a motion to dismiss.

(Doc. 15.)

Defendants Guilford

County, Guilford County Child Support, Renee Kenan, Denise Lee,
CS Agent Victoria Spach, Mark Payne, Guilford County Attorney,
and Angela Liverman have filed a motion to dismiss.

(Doc. 34.)

Defendant Jason Kenneth Purser has filed a motion to dismiss
individually.

(Doc. 30.)

The Honorable Frank Whitney and the

United States have filed a motion to dismiss.

(Doc. 43.)

Lastly, The Honorable N. Carlton Tilley, Jr., has filed a motion
to dismiss.

(Doc. 48.)

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, this court will grant all the above-mentioned motions
to dismiss.

This court will further dismiss Plaintiff’s

Complaint against all Defendants.
1.

Factual Background
This case is at least the third separate complaint filed by

this particular Plaintiff, Mr. Tornello Fontaine Pierce El-Bey.
See El-Bey v. City of Thomasville, No. 1:11CV413, 2012 WL
1077896 (M.D.N.C. Mar. 30, 2012), recommendation adopted, 2013
WL 5461819 (M.D.N.C. Sept. 30, 2013); El-Bey v. North Carolina
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Bd. of Nursing, No. 1:09CV753, 2009 WL 5220166, at *3 (M.D.N.C.
Dec. 31, 2009) (dismissing the complaint in its entirety as
“frivolous”); recommendation adopted, 2010 WL 3283070 (M.D.N.C.
Aug. 19, 2010)(noting that Plaintiff’s objections to the
Magistrate Judge’s recommendation “do not even rise to the level
of conclusory and general” and “were virtually incoherent”).
one court has previously recognized, the Washitaw Nation is a
notorious organization
[W]ho attempt[s] to benefit from the protections of
federal and state law while simultaneously proclaiming
their independence from and total lack of
responsibility under those same laws. Sanders–Bey v.
United States, 267 F. App'x 464, 466 (7th Cir. 2008)
(finding that the “Washitaw Nation . . . is not
recognized by the United States government”); Bybee v.
City of Paducah, 46 F. App'x 735, 736–37 (6th Cir.
2002) (finding that the “Nation of Washitaw” is
“fictional”); United States v. Gunwall, No. 97–5108,
1998 U.S. App. LEXIS 18596, at *11 (10th Cir. Aug. 12,
1998) (rejecting claim that the court had no
jurisdiction over a member of the Washitaw as
“frivolous”); Bey v. Louisiana, No. 08-cv-0250, 2008
WL 4072747 (W.D. La. July 11, 2008) (finding that
plaintiff's claim to land as a member of the Washitaw
was “patently frivolous” and rested on documents of
“dubious legal significance”); Great Seal Nat'l Ass'n
of Moorish Affairs v. 46th Dist. Ct. of Oakland
County, No. 06–CV15625, 2007 U.S. Dist. LEXIS 3199, at
*2 (E.D. Mich. Jan. 17, 2007) (dismissing claim that
plaintiffs owned several parcels of property by virtue
of their Moorish ancestry as “baseless, fantastic, and
delusional” and finding the complaint to be
“indecipherable”); Khattab El v. U.S. Justice Dep't,
No 86–6863, 1988 U.S. Dist. LEXIS 544, at *5 (E.D. Pa.
Jan. 22, 1988) (holding that “the United States has
not recognized the sovereignty of the Moorish Nation,
thus precluding sovereign immunity claims”).
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As

El–Bey v. United States, No. 1:08CV151, 2009 WL 1019999, at *1
(M.D.N.C. Jan. 26, 2009); see Hall-El v. United States, No.
1:11CV1037, 2013 WL 1346621 (M.D.N.C. Apr. 3, 2013),
recommendation adopted, El v. Pate, 2013 WL 5213428 (M.D.N.C.
Sept. 16, 2013); United States v. $7,000 in U.S. Currency, 583
F. Supp. 2d 725, 732-33 (M.D.N.C. 2008).

Similarly, here,

Plaintiff’s claims arise from what is best described as
unfounded interpretations of a number of different statutes and
rules, without support in law or fact.
With regard to the actual claims alleged, even liberally
construing Plaintiff’s Complaint, this court is unable to
decipher the majority of Plaintiff’s allegations.

However,

piecing together various statements in the Complaint, it appears
this set of allegations originated from Plaintiff’s failed
litigation in a child support case (Compl. (Doc. 1) ¶¶ 17-27)
and/or a traffic violation and resulting arrest (Id. ¶ 44).

The

remaining allegations in the brief relate, in some capacity, to
Plaintiff’s affiliation with the Washitaw Empire.

The twenty-

three causes of action vary widely in scope, ranging from the
“forcing of illegal slavery trade,” to fraud, to being subjected
to “Genocide/denaturalization.”

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2.

Analysis
A.

12(b)(6) - Rule 8 Challenges

Because Plaintiff has failed to meet even the generous
pleading standards afforded to pro se plaintiffs, the Complaint
must be dismissed.
Rule 8 of the Federal Rules of Civil Procedure provides
that pleadings setting forth claims for relief shall contain:
(1) a short and plain statement of the grounds for jurisdiction;
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and (3) a demand for judgment for
the relief the pleader seeks.

Although pro se complaints are

held to a less stringent standard than those drafted by
attorneys, “[p]rinciples requiring generous construction of pro
se complaints are not, however, without limits.”

Beaudett v.

City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

The

sufficiency of a complaint under Rule 8 is generally tested
under Rule 12(b)(6).

E.g., North Carolina v. McGuirt, 114 Fed.

App’x 555, 559 (4th Cir. 2004).

“Even when a plaintiff has paid

the full filing fee, the district court retains discretion to
dismiss the claims sua sponte.”

Berry v. Gorman, Civil Action

No. 7:12cv00500, 2012 WL 5941488, at *1 (W.D. Va. Nov. 27,
2012); see id. (collecting cases).

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Even liberally construed, Plaintiff’s vague ramblings and
nonsensical claims are so incomprehensible no defendant could
possibly be expected to defend this action.

E.g., McGuirt, 114

Fed. App’x at 558 (“The complaint before us is both long and
complex and fails to state its claims clearly enough for the
defendants to know how to defend themselves.”); Carpenter v.
Williams, 86 F.3d 1015, 1016 (10th Cir. 1996).

Because

Plaintiff has fallen well short of the requisite Rule 8 pleading
standards, the Complaint must be dismissed under Rule 12(b)(6).
B.

12(b)(6) – Failure to State a Claim

All Defendants move to dismiss the Complaint pursuant to
Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

(See

Defs.’ Briefs, Doc. 6 at 4-6; Doc. 14 at 1-2; Doc. 16 at 5-6;
Doc. 31 at 4-5; Doc. 35 at 7-11; Doc. 44 at 12-13; Doc. 49 at 910.)

In deciding a motion to dismiss for failure to state a

claim under Rule 12(b)(6), the trial court must accept factual
allegations as true.
(2007).

E.g., Erickson v. Pardus, 551 U.S. 89, 91

A motion under Rule 12(b)(6) is proper when the

complaint’s factual allegations fail as a matter of law to state
a plausible claim for relief.
678 (2009).

Ashcroft v. Iqbal, 556 U.S. 662,

“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
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misconduct alleged.”

Id.

However, a court is not required to

accept “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements . . . .”

Id.

Taking Plaintiff’s allegations as true, this court is
unable to uncover any set of facts stating a plausible claim for
relief against any of the named Defendants.

Nowhere among the

Plaintiff’s conclusory allegations is this court able to
untangle facts sufficient to support a single civil wrong.
E.g., Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir.
2001) (“The presence, however, of a few conclusory legal terms
does not insulate a complaint from dismissal under Rule 12(b)(6)
when the facts alleged in the complaint cannot support [the
asserted conclusory terms].”).

The complaint is impermissibly

vague as it fails to state a cause of action against any
Defendant and, for many Defendants, fails to show their
connection with any particular factual transaction to the extent
anything can be discerned from the complaint.

Therefore, this

court will grant the motions to dismiss as to each Defendant.
One other issue shall be addressed briefly.

Plaintiff has,

in a number of causes of action, alleged violations of various
federal criminal statutes.

(See, e.g., Compl. (Doc. 1) at 20-21

(Second Cause of Action alleging a violation of 18 U.S.C.
§ 1091; Third Cause of Action alleging a violation of 18 U.S.C.
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§ 112).)

Setting aside the fact that “[t]he Supreme Court

historically has been loath to infer a private right of action
from ‘a bare criminal statute’,” Doe v. Broderick, 225 F.3d 440,
447-48 (4th Cir. 2000), Plaintiff’s confusing allegations fall
short of establishing any plausible facts to state a claim of
the alleged violation, and offer no facts which could support a
finding that Plaintiff is an individual in whose favor the
statute creates a right even if it did exist.
Furthermore, the criminal statutes cited as causes of
action bear no basis in law or fact and are patently frivolous.
For example, 18 U.S.C. § 1091 relates to genocide; 18 U.S.C.
§ 112 relates to protection of foreign officials and official
guests; 18 U.S.C. § 878 relates to threats against foreign
officials; and 18 U.S.C. § 1583 relates to kidnapping or
enticing into slavery.
C.

(Compl. (Doc. 1) at 20-21.)

Immunity/Lack of Subject Matter Jurisdiction

While the complaint is subject to dismissal as to each of
the Defendants pursuant to Rule 12(b)(6), this court also finds
each motion asserting dismissal on grounds of absolute or
qualified immunity should be granted for the reasons set forth
in each of the briefs.

This court will only briefly summarize

those matters here.

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Plaintiff names two federal judges as defendants and three
state judges as defendants.
their judicial actions.

Judges have absolute immunity for

Stump v. Sparkman, 435 U.S. 349 (1978).

Plaintiff also names several state prosecutors as defendants.
Prosecutors have absolute immunity for their participation in
the judicial 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 State of North Carolina, Honorable Doug
Henderson, Guilford County District Attorney, ADA William Sean
Reavis, Honorable R. Andrew Murray, and Mecklenburg County
District Attorney have all pled sovereign, or Eleventh
Amendment, immunity as a defense.
to Dismiss (Doc. 6) at 3-10.)

(Defs.’ Mem. in Supp. of Mot.

Similarly, Defendants Betty J.

Brown, David Churchill, John O. Craig, III, and Thomas G.
Foster, Jr., have pled immunity under the Eleventh Amendment to
the U.S. Constitution.
(Doc. 16) at 4.)

(Defs.’ Mem. in Supp. of Mot. to Dismiss

Defendants United States of America and Frank

Whitney, United States District Judge for the Western District
of North Carolina1 have pled absolute judicial immunity (Defs.’

1

   Memorandum Opinion and Order revised to correct certain

clerical errors that do not affect the substance of the order.
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Mem. in Supp. of Mot. to Dismiss (Doc. 44) at 7-8) and sovereign
immunity (id. at 8-9).

Defendant N. Carlton Tilley, Jr., United

States District Judge for the Middle District of North Carolina
has pled absolute judicial immunity (Def.’s Mem. of Law in Supp.
of Mot. to Dismiss (Doc. 49) at 5-6) and sovereign immunity (id.
at 6-7).
To the extent Plaintiff sues these Defendants for damages
in their official capacities, the action is barred by the
immunity doctrines as set out in each of their respective
briefs.
3.

Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that

Defendants’ motions to dismiss (Docs. 5, 13, 15, 30, 34, 43, and
48) are GRANTED and this action is dismissed.

A Judgment

dismissing this action will be entered contemporaneously with
this Memorandum Opinion and Order.
This the 24th day of February, 2014.

________________________________________ 
United States District Judge

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