FATTAH v. UNITED STATES OF AMERICA et al

Filing 2

MEMORANDUM. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 8/5/2015. 8/5/2015 ENTERED AND COPIES MAILED TO PRO SE. (aeg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHAKA FATTAH, JR.

v.
UNITED STATES OF AMERICA
U.S. DEPARTMENT OF JUSTICE

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CIVIL ACTION

No. 15-4165

MEMORANDUM
Savage, J.

August 5, 2015

Plaintiff Chaka Fattah, Jr., proceeding pro se, has filed a motion to proceed in
forma pauperis and a complaint against the United States of America and the U.S.
Department of Justice. For the following reasons, we shall grant Fattah leave to
proceed in forma pauperis and dismiss his complaint as legally frivolous, pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).
Facts1
This case is related to a federal criminal proceeding currently pending against
Fattah and a prior civil action that he filed based on the criminal investigation into his
conduct. In July of 2014, Fattah was charged in a criminal indictment with several
fraud, theft, and tax-related offenses. United States v. Chaka Fattah, Jr., E.D. Pa.
Crim. A. No. 14-409. He was appointed counsel from the Federal Community Defender
Office. Approximately four months later, Fattah filed a motion seeking to represent
himself. Id. (Document No. 29). Judge Bartle, who is presiding over Fattah’s criminal

The following facts are taken from the complaint and the publicly available dockets
for the criminal and civil cases referenced in the complaint.
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case, granted that motion and appointed the Federal Community Defender Office as
standby counsel. Fattah unsuccessfully sought to dismiss the indictment on more than
one occasion and recently filed a third interlocutory appeal. The criminal case is
currently scheduled for trial in October.
Prior to his indictment, Fattah brought a civil action against the United States and
the Internal Revenue Service. He raised claims based on IRS agents’ search of his
residence in connection with the criminal investigation into his conduct and the news
media’s reporting on that search. See Fattah v. United States, Civ. A. No. 14-1092,
2014 WL 4249768, at **1-2 (E.D. Pa. Aug. 27, 2014). We dismissed Fattah’s claims,
except one based upon a prohibited disclosure of tax information under 26 U.S.C. §
7431. Id. at *14. The civil case was stayed pending the resolution of the federal
criminal proceeding.
In the instant civil action, Fattah alleges that the United States and the U.S.
Department of Justice violated several of his constitutional rights. He claims that
because he suffered financial loss due to the government’s pre-indictment conduct, as
alleged in Civ. A. No. 14-1092, he lacks sufficient funds to pay for counsel of his choice
in his criminal action and to pay for an investigation and/or experts to mount a defense.
Accordingly, so he alleges, the federal government has deprived him of his Sixth
Amendment right to his choice of counsel and of due process.
Fattah also alleges that the federal criminal proceeding against him was initiated
in bad faith and violates his First Amendment rights in several respects. He seeks
damages, an injunction staying his criminal case until resolution of his civil cases, and a

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declaration that his constitutional rights have been violated by the government’s preindictment conduct and his federal prosecution.
Discussion
It appears Fattah is incapable of paying the fees necessary to commence this
civil action. Thus, we shall grant Fattah leave to proceed in forma pauperis.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(I), we must dismiss the complaint if it is
frivolous. A complaint is frivolous if it "lacks an arguable basis either in law or in fact,"
Neitzke v. Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is "based on
an indisputably meritless legal theory." Deutsch v. United States, 67 F.3d 1080, 1085
(3d Cir. 1995). As Fattah is proceeding pro se, we construe his allegations liberally.
Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
There is no legal basis for Fattah’s constitutional claims because the defendants
are entitled to sovereign immunity. “It is axiomatic that the United States may not be
sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Although Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) creates a damages
remedy for certain constitutional violations committed by officials acting under federal
law, it does not support a cause of action against the federal government itself or
federal agencies. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001)
(explaining that Bivens “is concerned solely with deterring the unconstitutional acts of
individual officers”); F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994) (“An extension of
Bivens to agencies of the Federal Government is not supported by the logic of Bivens

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itself.”); Lewal v. Ali, 289 F. App'x 515, 516 (3d Cir. 2008) (per curiam) (“Bivens claims
against the United States are barred by sovereign immunity, absent an explicit waiver”).
The United States has not waived immunity for constitutional claims such as those
raised by Fattah. Consequently, there is no legal basis for his complaint.
In essence, Fattah is asking us to take action that would affect his ongoing
criminal case before Judge Bartle. We cannot do so. "[T]he structure of the federal
courts does not allow one district judge to rule directly on the legality of another district
judge's judicial acts or to deny another district judge his or her lawful jurisdiction." See
Smith v. Meyers, 843 F. Supp. 2d 499, 505 (D. Del. 2012). In other words, we have no
authority to interfere with the criminal case before Judge Bartle.
Conclusion
Because there is no legal merit to Fattah’s claims, we shall dismiss his complaint
as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(I). We shall not grant leave
to amend because amendment would be futile.