Bell v. Jackson et al

Filing 5

OPINION AND ORDER by Judge Ronald A. White dismissing this matter with prejudice (case terminated) and directing Plaintiff file any objections he may have to the proposed filing restrictions within 10 days(lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
Sylvanius Bell,
Plaintiff,
v.

Case No. 18-CIV-120-RAW

Nicky Jackson, Kevin Klein, Robert Smith,
Kevin Cowen, Kenneth Cowen, French
Cowen, James Winters, Carmen Grant,
Mark Grant, Martin King III,
Defendants.
OPINION AND ORDER
The Complaint [Docket No. 1] in this matter was filed on April 19, 2018. The
court construes Plaintiff=s allegations liberally as he is pro se. See Haines v. Kerner, 404
U.S. 519 (1972).
The Complaint states that Plaintiff lives in Las Vegas, Nevada. Defendants live in
San Francisco, California; Palm Beach, Florida; and Dallas, Texas. Id, at Page 1-2.
Plaintiff=s Statement of Claim states as follows:
Robert Smith, Kevin Cowen, Kenneth Cowen, James Winters and Bob Blythe are
watching me via my email. Clearly, they own a spyware; they are computer
hackers. This is the fourth time, I have had a run in with them. They are paying
people not to do business with me and RangeMe bite the bullet and accepted the
money. Therefore, denying me to sell merchandise from their site by accusing me
of being a distributor or a wholesaler. I am an import agent. They keep calling me
a distributor and have locked me out of the their webpage. I believe my prospects
were given away and my page was unfairly shutdown because of a bribe.
Id, Page 4.

Plaintiff requests relief “For hardship, false advertisement and mental
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anguish, I want five million dollars.”

Id, Page 4.

On Page 2 of the Complaint, Plaintiff lists the address for Defendant No. 2, Darryl
Jackson.

The caption of the Complaint, however, does not list Darryl Jackson as a

Defendant; the Statement of Claim also fails to mention Darryl Jackson.
The Complaint is also unsigned.

Id, Page 5.

Id, Pages 1, 4.

See Fed.R.Civ.P. 11. (Every

pleading … must be signed … by a party personally if the party is unrepresented.)
Plaintiff=s arguments are Acompletely lacking in legal merit and patently frivolous.@
Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
Venue
28 U.S.C.A. § 1391 states as follows:
(b) Venue in general.--A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any defendant is
subject to the court's personal jurisdiction with respect to such action.
28 U.S.C.A. § 1391. In the instant matter, no party in this action resides in Oklahoma and
none of the events in the Statement of Claim are alleged to have occurred in Oklahoma.
The Complaint also fails to allege that the action involves any property located in
Oklahoma. This court has no personal jurisdiction as to any defendant.

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28 U.S.C. ' 1915
Section 1915 of the United States Code, Title 28, states as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines
thatB
(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C.A. ' 1915(e)(2).
A complaint is frivolous Awhere it lacks an arguable basis either in law or in fact.@
Further, the term frivolous Aembraces not only the inarguable legal conclusion, but also
the fanciful factual allegation.@ Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
plaintiff is not required to make out a perfect case in their complaint. Rather, AIt suffices
for him to state claims that are rationally related to the existing law and the credible factual
allegations.@ Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 (10th Cir. 1994).
Sua Sponte Dismissal

ASua sponte dismissals are generally disfavored by the courts.@ Banks v. Vio
Software, 275 Fed.Appx. 800 (10th Circ. 2008). A court shall dismiss a case at any time,
however, if the court determines that the action fails to state a claim on which relief may
be granted, or seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. ' 1915(e)(2)(B)(ii) and (iii).

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Indeed, the Tenth Circuit Court of Appeals has stated that a district court is required
to dismiss an IFP claim that is frivolous or malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief against a defendant who is immune from such
relief. Trujillo v. Williams, 465 F.3d 1210, 1216 n.5 (10th Cir. 2006).
The court may sua sponte dismiss an action pursuant to ' 1915 when Aon the face of
the complaint it clearly appears that the action is frivolous or malicious.@ Hall v.
Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). AThe term >frivolous= refers to >the
inarguable legal conclusion= and >the fanciful factual allegation.=@ Id. (citation omitted).
Further, a Atrial court may dismiss a claim sua sponte without notice where the claimant
cannot possibly win relief.@ McKinney v. State of Oklahoma, 925 F.2d 363, 364 (10th Cir.
1991).
Frivolous Lawsuits
Plaintiff has now filed eight actions in this court in less than two months. See Case
Nos. 18-CIV-085-RAW, 18-CIV-090-RAW (dismissed on April 5, 2018 for failure to
pay filing fee or submit a motion for in Forma Pauperis), 18-CIV-091-RAW (dismissed
on April 5, 2018 for failure to pay filing fee or submit a motion for in Forma Pauperis),
18-CIV-098-RAW (dismissed on April 10, 2018 for failure to pay filing fee or submit a
motion for in Forma Pauperis), 18-CIV-121-RAW, 18-CIV-122-RAW (dismissed on
May 1, 2018 for failure to pay filing fee or submit a motion for in Forma Pauperis), and
18-CIV-123-RAW.

Plaintiff is establishing himself as a frequent filer of frivolous

lawsuits.
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SANCTIONS
Plaintiff is in the category of “hobbyist litigators” described in Westridge v.
Allstate Ins. Co., 118 F.R.D. 617, 621 (W.D. Ark. 1988). “These lawsuits are not only a
nuisance, but they threaten to delay justice for those who should be in federal court and
who have legitimate and significant matters to litigate.” Id. Plaintiff “has no absolute,
unconditional right of access to the courts and no constitutional right to prosecute
frivolous or malicious actions.” Garrett v. Esser, 53 Fed.Appx. 530, 531 (10th Cir.
2002). Furthermore, the court “may impose restrictions commensurate with its inherent
power to enter orders ‘necessary and appropriate’ in aid of jurisdiction.” Id.; 28 U.S.C.
§ 1651. To this point, Plaintiff’s filings in the Eastern District have not been extremely
numerous, but have been without merit. The court does not deem it necessary to allow
Plaintiff to file numerous more meritless complaints before limiting his ability to do so.
Therefore, Plaintiff is hereby enjoined from proceeding as a plaintiff in this District
unless he is represented by a licensed attorney admitted to practice in this court or unless
he first obtains permission to proceed pro se.
In the future, Plaintiff must take the following steps to obtain permission to
proceed pro se:

1.
File a petition with the Clerk of this Court requesting leave to file a pro se
action;
2.

Include in the petition the following information:

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A.
A list of all lawsuits currently pending or filed previously with this
court, including the name and number of each case, and the current status or
disposition of the lawsuit; and
B. A list apprising this court of all outstanding injunctions or orders
limiting Plaintiff’s access to federal court, including orders and injunctions
requiring Plaintiff to seek leave to file matters pro se or requiring him to be
represented by an attorney, including the name and case number of all such
orders or injunctions; and
3.
File with the clerk a notarized affidavit, in proper legal form, which recites
the issues he seeks to present, including a short discussion of the legal basis of the
claim asserted, and describing with particularity the facts giving rise to said claims.
The affidavit also must certify, to the best of Plaintiff’s knowledge, that the legal
arguments being raised are not frivolous or made in bad faith, that they are
warranted by existing law or a good faith argument for the extension, modification,
or reversal of existing law, that the lawsuit is not interposed for any improper
purpose, and that he will comply with all local rules of this court.
These documents shall be submitted to the Court Clerk, who will refer them to the
presiding judge for review to determine whether the complaint is lacking in merit,
duplicative or frivolous. The presiding judge will make the final determination whether
to dismiss the complaint or to enter an order allowing the complaint to proceed in
accordance with the Federal Rules of Civil Procedure and the Local Rules of the Eastern
District.
Plaintiff has ten days from the date of this Order to file written objections, limited
to ten pages, to these sanctions. If Plaintiff files no objection, the sanctions noted
herein will take effect twenty days from the date of this Order. If Plaintiff files
objections, these sanctions will not take effect until after the court rules on those
objections.

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Conclusion
The allegations listed in the complaint do not create a claim upon which this lawsuit
can proceed. The court finds that Plaintiff=s action is frivolous, and that Plaintiff fails to
state a claim on which relief can be granted. This matter is dismissed with prejudice.
Furthermore, Plaintiff has ten days from the date of this Order to file written
objections, limited to ten pages, as to the proposed filing sanctions. If Plaintiff files no
objection, the sanctions noted herein will take effect twenty days from the date of this
Order. If Plaintiff files objections, these sanctions will not take effect until after the
court rules on those objections.
Dated this 8th day of May, 2018.

_________________________________
HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

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