TAY v. OBAMA et al

Filing 8

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/21/2015. ORDERED that Plaintiff's application to proceed in forma pauperis (Docket Entry 6 ) be DENIED. FURTHERMORE, IT IS RECOMMENDED that Plaintiff's motion (Docket Entry 7 ) entitled "Tay's Amended Motion for Preliminary Injunctive Relief' be DENIED as moot, and Plaintiff's complaint be DISMISSED for being frivolous and for failure to state a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B). (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TAY d/b/a DONTAVIOUS

S.

SMITH,

Plaintiff,
V.

BARACK HUSSEIN OBAMA, etal.,
Defendants.

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1,:1,4CY802

ORDER. MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on PlaintifÎs application to proceed in forrna

paaþeris.

Q)ocket Etttry 6.) After review of PlaintifPs Complaint pursuant to 28 U.S.C. $1915(e)(2)(B),

this Court recommends that PlaintifPs application to ptoceed

in forrza þaaperi¡

l¡e denied, and

this action be dismissed as frivolous.l

I. BACKGROUND
In a 400-page Complaint, Plaintiff alleges that Defendants engaged in a scheme
(known as "Tay Tay Terror Attack") "depriving fPlaintiffl of his human rights specifically

petaining

to aî illegal and ftaudulent drug test."

(Complaint

T 10, Docket Entry 1.)

Plaintiff asserts ovet L30 counts in the Complaint, asserting alttany of state-law and fedetal

claims. Plaintiff seeks numerous forms of telief including an apology ftom "RICO"
defendants, declaratory relief mandating Defendant Mictosoft, Inc. and the State of Flotida

fund a $3.6 million dollar renovation ptoject at three Flotida schools, compensatory

Because the Court recommends dismissal of this action as frivolous, the court recommends that
Plaintiffs motion entitled "Tay's A.mended Motion for Pteliminary Injunctive Relief' @ocket Ettry
1

7) be denied âs moot.

damages, punitive damages and much

II.

more. (Compl.

^t383-399.)

STANDARD OF REVIE\)ø
The Court is required to dismiss frivolous or malicious claims, and any complaint that

fails to state a claim upon which relief can be gtanted. 28 U.S.C. $ 1915(e)(2)@); Micbaa
Charleston

Cnfl., 5.C., 434 F.3d 725,728 (4th Ctr. 2006). "Dismissal of

appropdate when

it lacks an argmble

366,368 (4th Cir. 201,0).

fact."

basis in law

susceptible

a¡ acton . . . is

of fact." Jones u. Stemheimer,3ST F. App'"

A ftivolous complaint "lacks an argnable

Neitqke u. IYillians,490 U.S. 31,9, 325 (1989);

376 F.3d 252,256-57

u.

see also

basis

in eithet law or in

Nagy u. Federal Med. Ctr. Butner,

(4th Cir. 2004) ("The word 'frivolous' is inherently

elastic and not

to categorical definition. . The term's capaciousness directs lowet courts to

conduct a flexible analysis, in light of the totality of the circumstances, of all factots bearing
upon the ftivolity of a claim." (some internal quotation marks omitted)).
Altetnatively, a complaint that does not "contain sufficient facttal matter, accepted
true, to 'state a claim to relief that is plausible on its face"' must be dismissed. Ashroft

as

u.

Iqbal,556 U.S. 662, 678 Q009) (quoting Bell Atlantic u. Twonbfu 550 U.S. 544, 570 Q007)).
".4. claim has facial plausibility when the

plaintiff pleads fac¡nI content that allows the coutt

to dtaw the reasonable inference that the defendant is liable for the misconduct." Id. The
"court accepts all well-pled facts

as

true and construes these facts in the light most favorable

to the plaintiff in weighing the legal sufficiency of the complaint," but does not considet

"legal conclusions, elements of a cause of action, . . bate assettions devoid of factual

enhancementfi]

unwarranted inferences, unteasonable conclusions,

or

arguments."

Nemet Cltewolet, Ltd. u. Consømerffiirs.czm, lnc.,591 F'.3d 250, 255 (4th Cir. 2009) (citations

2

omitted). In other words, the standard requires a plaintiff to arnculate facts, that, when
accepted as true, demonstrate the plaintiff has stated a clum that makes

it

plausible he is

entitled to relief. Frands u. Gianmelli,588 F.3d '186, 1,93 (4th Cir. 2009) (quoting lqbal, 556
U.S. at 678,andTwonbþ,550 U.S.

^t557).

Pro

y complaints àteto be consúued libetally and

"must be held to less stingent standards than formal pleadings dtaftecl by lawyets." Erickson
u.

l)ardat,551 U.S. 89,94 Q007) (internal quotation omitted).

III. DISCUSSION
Plaintiff is no stranger to the federal courts.

I3S,

See

Smitb u..F/a., No.6:12-cv-439-CEH-

201.2WL 325271,9, at *4 (À{.D. Fla. Aug. 7,201,2) (dismissing complaint and enjoining

Plaintiff from fìling future lawsuits atising ftom facts in previous telated cases); Smith
Bd. of Breuard Cnfl., No. 6:09-cv-2033-GAP-I3S, 2010
201,0) (dismissing

lfl.

u. Sch.

1385866, at x3 (À4.D. Fla. Apt. 1,

with ptejudice as "utter nonsense"); Smith

u. Sch. Bd. of Breuard

Cnfl., No.

6:'1.1,-cv-731-GAP-KRS (I\rI.D. Fla. May 25,201,1) (dismissing complaint with ptejudtce);
also

Snith u. Fla., No 6:L2-cv-1385-ORL-22,

201,2) (dismissing

20'1,2

WL 6645022, at x1

(1\4.D. Fla.

see

Dec. 20,

complaint with prejudice and otdeting cletk "not to accept any futthet

pleadings, motions, or other documents ftom Plaintiff

in this case.") In addition, Plaintiff

also filed a similar action in the Eastern District of New

Yotk.

See

Smitlt u. Dath, No. 1:14-

cv-4047-ARR-LB, 201,4WL 36951,93, at *1 (E.D.N.Y. July 22,201,4). United States District
Judge Allyne R. Ross dismissed the complaint as ftivolous, and stated that "[t]he coutt will

not allow plaintiff to citcumvent the Middle fDistrict of Florida's] fìling injunction by
allowing this complaint to proceed here." (d. at

J

*2.) Plaintiff has now filed in this Coutt

two separate actions2 asserting

^n ^ff^y

of

claims and violations that arc again clearþ

ftivolous and "lacks an argtable basis in law or fact." Stemheirner,3ST F. App'* at368;
Denton

u.

HemandeT, 504

U.S. 25, 33 (1,992)

("[4

finding

of

see also

factual frivolousness is

appropdate when the facts alleged tise to the level of the :nrattonal ot the wholly inctedible .

.

. .") Similarty to the last action filed, Plaintiff has shown no reason why his claims should
proceed hete. Moreover, Plaintiff fails to allege sufficient facts to state any plausible claim.
Il/eller u. DE't of Soc.

Servs.

þr

Cigt of Baltimore,901. F.2d 387,391. (4th Cir. 1990)

("[A] disttict

court is not tequired to recognize "obscure or exravagant claims defying the most concerted

effots to unravel them.") (quotation and citation omitted). Plaintiffs allegations are either
conclusory

ot

completely nonsensical from which no cause

of action

can be reasonably

construed. Thus, the Coutt recommends dismissal of this action fot being frivolous and for

failue to state a colotable claim fot telief under 28 U.S.C. $ t9t5(e)(Z)(l).

IV. CONCLUSION
Fot the reasons set herein,

IT IS THEREFORE ORDERED that

application to ptoceed iruþnzapøøperis pocket Entry 6) be

FURTHERMORE,

IT IS RECOMMENDED

Plaintiffls

DENIED.
that Plaintiffs motion (l)ocket

Entry 7) entitled 'ufay's Amended Motion fot Preliminary Injunctive Relief'be DENIED
as moot, and PlaintifPs complaint be
state a claim on which

DISMISSED fot being ftivolous and fot failure to

telief may be gtanted undet 28 U.S.C. $ 19t5(e)(Z)(B).

Plaintiff has previously fi.led a Complaint in this district in which the undersþed recommended
dismissal on gtounds that the Complaint is frivolous. See Ta1 a. United Søns DepT of Edua, No. 1:14cv -468, 201 4 WL 41, 8507 5 (I\{.D.N.C. Aug. 27, 201 4.)

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Uni

January

015

Durham, Notth Carohra

5

ebstet
J eL.
States Magisttate Judge