Arunga v. Romney et al

Filing 3

REPORT AND RECOMMENDATIONS granting 1 MOTION for Leave to Proceed in forma pauperis & recommending that this case be dismissed under 28 U.S.C. §1915(e)(2). Objections to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 10/24/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
James A-K Arunga,

:

Petitioner,
v.

:
:

Case No. 2:12-cv-873

:

JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp

Mitt Romney, et al.,
:
Respondents.

:

REPORT AND RECOMMENDATION AND
ORDER
Plaintiff, James A-K Arunga, a non-prisoner pro se litigant
who resides in California, has moved for leave to proceed in
forma pauperis.

He qualifies financially for in forma pauperis

status, so his motion for leave to proceed (Doc. 1) is granted.
However, for the reasons which follow, it will be recommended
that this action be dismissed.
I.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, “[t]he court shall dismiss the case if ... (B) the
action ... is frivolous or malicious [or] fails to state a claim
on which relief can be granted....”

The purpose of this section

is to prevent suits which are a waste of judicial resources and
which a paying litigant would not initiate because of the costs
involved.

See Neitzke v. Williams, 490 U.S. 319 (1989).

A

complaint may be dismissed as frivolous only when the plaintiff
fails to present a claim with an arguable or rational basis in
law or fact.

See id. at 325.

Claims which lack such a basis

include those for which the defendants are clearly entitled to
immunity and claims of infringement of a legal interest which
does not exist, see id. at 327-28, and “claims describing

fantastic or delusional scenarios, claims with which federal
district judges are all too familiar.”

Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992).

A complaint may not be

dismissed for failure to state a claim upon which relief can be
granted if the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

Pro se complaints are to be

construed liberally in favor of the pro se party.
Kerner, 404 U.S. 519 (1972).

See Haines v.

The Court is required to review Ms.

Carter’s complaint under these standards.
II.
Mr. Arunga has called his complaint a “Petition for a Writ
of Mandamus to the Respondents Against Their Outlawed Political
Ochlocracy.”

The respondents he names are President Barack Obama

and former Massachusetts governor Mitt Romney.

The complaint

invokes jurisdiction under the United States Constitution and 18
U.S.C. §§1956 and 1957, which criminalize money laundering.
Among his complaints are the deleting of the phrase “In God We
Trust” from the Democratic National Committee Platform, which he
describes as “ochlocratic nihilism,” and the way in which
Governor Romney has, in Mr. Arunga’s view, avoided paying taxes.
He asks that both candidates be “outlawed” and that the Court
order Robert Gates and David Petraeus be declared the legal
candidates for president and vice-president.
Ochlocracy is not a term in common use, at least in
documents filed with this Court, nor does it appear in the
Westlaw allfeds database for 2012.

It means simply “mob rule.”

The complaint appears to allege that either or both presidential
candidates intend to create such conditions and that the
Constitution forbids them.
Whatever the merits of Mr. Arunga’s constitutional views
about ochlocracy might be, his complaint fails to state a claim
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upon which this Court can grant relief.

This Court is one of

limited powers (those vested in it by Article III of the
Constitution and by Act of Congress), and the subject matter of
Mr. Arunga’s complaint - that a presidential candidate is
threatening to create an unconstitutional form of government - is
simply beyond the reach of the Court’s limited powers.

Some

questions, known as “political questions,” are properly reserved
to branches of the government other than the courts.

As the

Supreme Court has explained, the “political question” doctrine
“is ‘essentially a function of the separation of powers,’ Baker
v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),
which recognizes the limits that Article III imposes upon courts
and accords appropriate respect to the other branches' exercise
of their own constitutional powers.”

Zivotofsky ex rel.

Zivotofsky v. Clinton, 132 S.Ct. 1421, 1431 (2012)(Sotomayor, J.,
concurring).

Among the factors which Baker v. Carr requires a

court to consider in deciding if a political question is present
are the lack of judicial standards for resolving the issue and
the impossibility of judicial resolution without policy
determinations committed to other branches of the government.
Baker, 369 U.S. at 217.

These factors are designed, in part, to

weed out cases which would require a court to act other than “in
the manner traditional for English and American courts.”

Vieth

v. Jubelirer, 541 U.S. 267, 278 (2004)(plurality opinion).
Intervention into the midst of a political campaign for the
purpose of disqualifying candidates based on an alleged threat to
impose unconstitutional mob rule if elected is not a traditional
function of the American courts.

There is no established

judicial standard for what constitutes an ochlocracy, and
certainly none which applies to the alleged threat of
establishing such a government based on actions taken during the
course of a political campaign.

Although the Court does have the
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power to determine if, for example, restrictions on contributions
to political campaigns or restrictions on the speech in which
candidates can engage are consistent with the Constitution, and
particularly the First Amendment, see, e.g., Citizens United v.
Federal Election Com'n, 558 U.S. 31 (2010);

McIntyre v. Ohio

Elections Com'n, 514 U.S. 334 (1995), its power to supervise or
control political campaigns is fairly limited, and must depend on
the existence of a concrete and enforceable constitutional or
statutory provision susceptible of judicial interpretation and
application.

That is especially so where, as here, the

constitutional provisions which Mr. Arunga cites do not appear to
have direct application to the actions about which he complains,
and much of his argument is based on the Preamble to the
Constitution, which does not create any legally enforceable
rights.
As another court has also observed, in dismissing a case
brought by this same plaintiff, “[t]he mere recitation ... of
various sections of the United States Constitution and random
United States Code citations is insufficient” to state a claim
upon which relief can be granted.

Arunga v. American Civil

Liberties Union Foundation, 2009 WL 3274784, *1 (D. Or. Oct. 9,
2009), aff’d 441 Fed. Appx. 469 (9th Cir. July 1, 2011).
the situation here as well.

That is

This complaint simply presents no

justiciable issue which a court can resolve.

Consequently, it

should be dismissed under 28 U.S.C. §1915(e)(2).
III.
For all of these reasons, it is recommended that this case
be dismissed under 28 U.S.C. §1915(e)(2).

Should the Court adopt

this Report and Recommendation, a copy of the petition and the
order of dismissal should be mailed to the respondents to the
extent that the Clerk can determine an address to which they can
be mailed.
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IV.
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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