SMITH v. THOMAS-STREET et al

Filing 7

MEMORANDUM AND OPINION. SIGNED BY DISTRICT JUDGE HARVEY BARTLE, III ON 8/29/24. 8/29/24 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DENIYA NAKEIDRA SMITH,
Plaintiff,

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v.
SIERRA THOMAS-STREET, et al.,
Defendants.

CIVIL ACTION NO. 24-CV-4215

MEMORANDUM
BARTLE, J.

AUGUST 29, 2024

Currently before the Court is a Complaint filed by Plaintiff Deniya Nakeidra Smith, a
self-represented litigant, in which she raises claims against judges, attorneys, and a mortgage
servicing company arising out of a mortgage foreclosure proceeding that was filed against her in
the Philadelphia Court of Common Pleas. Smith seeks to proceed in forma pauperis. For the
following reasons, the Court will grant Smith leave to proceed in forma pauperis and dismiss the
Complaint.
I.

FACTUAL ALLEGATIONS 1
Smith’s claims derive from a mortgage foreclosure action filed on June 15, 2023 by

Carrington Mortgage Services, LLC (“Carrington”), against her and the Ase Family Trust
regarding a mortgage loan that Smith took on property at 5324 West Columbia Avenue in
Philadelphia. (Compl. at 1 (referring to “Lower Court Case No. 230601442”).); see also

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The following allegations are taken from the Complaint and public records of which the Court
may take judicial notice. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.
2006).

Carrington Mortgage Servs. LLC v. Smith, No. 230601442 (C.P. Phila.). 2 The docket for the
case lists the Honorable Sierra Thomas-Street and the Honorable Damaris Garcia as assignment
judges and the Honorable Abbe Fletman and the Honorable Joshua Roberts as Team Leaders.
Carrington Mortgage Servs. LLC v. Smith, No. 230601442 (C.P. Phila.). The Honorable Lisette
Shirdan-Harris, as Administrative Judge of the Trial Division signed a case management order
issued in the case, and the Honorable Daniel J. Anders also presided over the case for purposes
of granting Smith leave to proceed in forma pauperis on September 22, 2023. Id. The docket
lists Christopher A. Denardo, Samantha Gable, and Heather S. Riloff as counsel for Carrington.
Id.
On May 21, 2024, a default judgment was entered in favor of Carrington in the amount of
$194,021.87 because Smith and the Ase Family Trust failed to answer the complaint in the
required time. Id. On June 11, 2024, Carrington, through its attorneys, filed a praecipe for a writ
of execution to execute against the property listed in the complaint to satisfy the judgment. Id.
Smith appealed on June 20, 2024. Id. She filed a “motion to stay proceedings” on August 23,
2024. Id.
In the meantime, Smith filed the instant lawsuit on August 14, 2024 against: (1) Judges
Thomas-Street, Anders, Fletman, Garcia, Roberts, and Shirdan-Harris (together the “Judicial
Defendants”); (2) Carrington; and (3) Attorneys for Carrington Riloff, Denardo, and Gable
(together “Attorney Defendants”). (Compl. at 1-2.) Smith alleges that she “filed Certificates of

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Smith unsuccessfully tried to remove the foreclosure case to this Court on several occasions
and was ultimately enjoined from further removal efforts. See Carrington Mortg. Servs. LLCDuns & Broadstreet #939795238 v. Smith, No. 23-3729, 2023 WL 6881053, at *1 (E.D. Pa. Oct.
18, 2023). A copy of the foreclosure complaint can be found in her prior cases. See Carrington
Mortgage Servs. LLC-Dunns & Broadstreet #939795238 v. Smith, Civ. A. No. 23-3376 (ECF
No. 2-1).
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Equitable Titles to certain accounts relating to Religious Real Property located at 5324 West
Columbia Avenue Philadelphia Pennsylvania into the Ase Family Trust,” which she alleges
owns the property. (Id. at 2, ¶ 7.) According to Smith, the Ase family uses the property
“principally for religious worship” so the property is “exempt from taxation under both federal
and state law.” (Id. at 2, ¶ 8.) She claims Judge Thomas-Street “has levied a property tax
amounting to $194,021.87” on the property in violation of the constitution, which the Court
understands to be a reference to the default judgment entered in the foreclosure proceeding. (Id.
at 2, ¶ 9.) Smith further alleges that she responded to the judgment by filing various document in
the foreclosure case to which the Defendants did not respond. (Id. at 2, ¶ 10.)
Based on those allegations, Smith brings claims for violation of her constitutional rights
and a claim for an alleged violation of 18 U.S.C. § 247. 3 (Id. at 3, ¶¶ 13-6.) Smith primarily
seeks a declaration that her rights were violated and an injunction “barring Defendant(s) from
levying taxes on the non-commercial properties held by the Ase Family Trust for the Religious
purposes of Ase Family of Peace.” (Id. at 3.) Smith also attached exhibits to her Complaint,
(ECF No. 2-1), specifically:
1. A deed reflecting that she granted title of the property at 5324 West Columbia
Avenue to the Ase Family Trust on March 27, 2023, less than two months before the
foreclosure action was filed, (ECF No. 2-1 at 2-10);
2. A mortgage that Smith took on the property in 2021 that is the subject of the
foreclosure action, (id. at 11-33);

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Smith also brings a claim that she titles “Usurpation of Office and Acting Outside Official
Capacity,” which appears to be intended as a basis for arguing that the Judges acted outside their
authority. (Id. at 3, ¶ 15.)
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3. A document titled “Certificate of Equitable Title” dated March 27, 2023, certifying
that “legal, fee simple, equitable ownership” of the property is held by the Ase Family
Trust, and which describes Smith as the “Previous Owner” of the property as well as
the “Current Owner/Donee” and the “Equitable Owner- smith, deniya nakeidraNational and Citizen of Ase Family Trust, non-citizen National of the United States,
native Moorish Pennsylvanian,” (id. at 34-35);
4. A document tilted “Conveyance of Property” also dated March 27, 2023 purporting to
transfer the property to the Ase Family Trust as “Church Property-within
constitutional exemption from taxation,” in which Smith is identified as the
“Grantor/Donor” and the Ase Family Trust is identified as the
“Trustee/Grantee/Donee,” (id. at 36);
5. Documents Smith describes as “additional trust res of the Deniya Nakeidra Smith
Living Trust currently in the property of the Defendant,” (id. at 1), comprised of a
redacted copy of Smith’s birth certificate, a faded document from the Pennsylvania
Department of Health, a UCC financing statement that Smith filed on April 14, 2023
listing herself as a secured party, and a “plea of tender” and “Notice of Adequate
Assurance of Performance and Settlement” that it appears she filed in the state
foreclosure action, (id. at 37-44); and
6. A document Smith describes as “Bailor’s Letter Patent outlining the conditions and
stipulation regarding the management and disposition of the trust res” (id. at 1) titled
“U.S. Treasury – ‘Letter of Credit’ in Honor No. PD-01,” which appears to have been
mailed to the United States Bankruptcy Court in the Southern District of Iowa and the
relevance of which to the instant case is unclear, (id. at 45).

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II.

STANDARD OF REVIEW
The Court grants Smith leave to proceed in forma pauperis because it appears that she

does not have the ability to pre-pay the fees to commence this case. Accordingly, 28 U.S.C. §
1915(e)(2)(B) requires the Court to screen the Complaint and dismiss it if it is frivolous,
malicious, fails to state a claim, or seeks monetary relief from an immune defendant. A
complaint is subject to dismissal under § 1915(e)(2)(B)(i) as frivolous if it “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). It is legally
baseless if “based on an indisputably meritless legal theory,” Deutsch v. United States, 67 F.3d
1080, 1085 (3d Cir. 1995), and factually baseless “when the facts alleged rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted); Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). “At this early stage
of the litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,’
‘draw[] all reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only whether [that]
complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.’”
Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d
768, 774, 782 (7th Cir. 2015)), abrogation on other grounds recognized by Fisher v.
Hollingsworth, --- F.4th ---, 2024 WL 3820969 (3d Cir. Aug. 15, 2024). Conclusory and
unsupported allegations do not suffice. Iqbal, 556 U.S. at 678. As Smith is proceeding pro se,

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the Court construes her allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021)
(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).
Furthermore, “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). The Court’s continuing
obligation to assure its jurisdiction includes an assessment of whether a plaintiff has standing to
pursue her claims. See Seneca Res. Corp. v. Twp. of Highland, Elk Cty., Pa., 863 F.3d 245, 252
(3d Cir. 2017) (“Our ‘continuing obligation’ to assure that we have jurisdiction requires that we
raise issues of standing and mootness sua sponte.”); see also Sprint Commc’ns Co., L.P. v. APCC
Servs., Inc., 554 U.S. 269, 273 (2008) (explaining that Article III of the Constitution limits the
power of the federal judiciary to the resolution of cases and controversies, and that this
“requirement is satisfied only where a plaintiff has standing”).
III.

DISCUSSION
A. Standing
“Although an individual may represent herself or himself pro se, a non-attorney may not

represent other parties in federal court.” Murray on behalf of Purnell v. City of Philadelphia,
901 F.3d 169, 170 (3d Cir. 2018); see also 28 U.S.C. § 1654. “The federal courts ‘have routinely
adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others
in a representative capacity.’” Gunn v. Credit Suisse Grp. AG, 610 F. App’x 155, 157 (3d Cir.
2015) (per curiam) (quoting Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008)).
Furthermore, “a plaintiff must assert his or her own legal interests rather than those of a third
party” to have standing to bring a claim. See Twp. of Lyndhurst, N.J. v. Priceline.com, Inc., 657
F.3d 148, 154 (3d Cir. 2011) (quotations omitted)). “To have standing to bring a claim in federal
court, a plaintiff must show, inter alia, that he has ‘suffered an injury in fact—an invasion of a

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legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not
conjectural or hypothetical.’” Marin v. Leslie, 337 F. App’x 217, 219 (3d Cir. 2009) (per
curiam) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘For an injury to
be “particularized,” it ‘must affect the plaintiff in a personal and individual way.’” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560 n.1.). Although a
trustee may sue on behalf of a trust when the trust it the true party in interest, the trustee may not
do so on a pro se basis and, rather, “need[s] to retain counsel.” Marin v. Leslie, 37 F. App’x 217,
219-20 (3d Cir. 2009) (per curiam).
Smith’s current relationship to the Ase Family Trust is unclear, but her Complaint and
Exhibits establish that she transferred whatever interest she had in the property to the Ase Family
Trust and that the trust is the true party in interest. The crux of Smith’s claims in this case is that
the Ase Family Trust was improperly subjected to a “tax” as a result of the default judgment
entered against it in the foreclosure action because it operates as a church and, thus, is entitled to
an injunction “barring Defendant(s) from levying taxes on the non-commercial properties held
by the Ase Family Trust for the Religious purposes of Ase Family of Peace.” (Compl. at 3.)
Smith may not bring these claims on behalf of the Trust on a pro se basis. That is so even if she
is a proper trustee, which, again, is not clear from her documentation. Accordingly, these claims,
including the claims for prospective injunctive relief, are dismissed without prejudice. See
Rowland v. Cal. Men’s Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202 (1993)
(explaining “that a corporation may appear in the federal courts only through licensed counsel”
and that “the rationale for that rule applies equally to all artificial entities”); Knoefler v. United
Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (“A nonlawyer, such as these purported

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‘trustee(s) pro se’ has no right to represent another entity, i.e., a trust, in a court of the United
States.”).
B. Smith’s Claims
To the extent the Complaint can be understood to raise claims on Smith’s own behalf
related to the foreclosure action, in which she is named as a defendant, those claims must be
dismissed. Notably, Smith’s claims are predicated on her recasting the default judgment entered
against her as a “tax,” but the creative use of language does not equate to a lawful basis for a
claim. 4 In any event, Smith’s claims fail for the additional reasons set forth below.
1. Claims Under 18 U.S.C. § 247
Smith invokes 18 U.S.C. § 247 a basis for one of her causes of action. (Compl. at 3, ¶
16.) That statue criminalizes damaging religious property and obstructing individuals from
freely exercising their religion. However, criminal statutes generally do not give rise to a private
cause of action. See Cent. Bank of Dover, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S.
164, 190 (1994) (“We have been quite reluctant to infer a private right of action from a criminal
prohibition alone[.]”). Indeed, courts have rejected the notion that § 247 contains a private right
of action. See, e.g., Sirleaf v. Clarke, No. 18-311, 2020 WL 1269787, at *13 (E.D. Va. Mar. 16,
2020) (“However, 18 U.S.C. § 247 is a federal criminal statute that does not provide a private

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Further, to the extent Smith relies on Moorish or Sovereign theories to pursue relief in this case,
her claims are frivolous. See United States v. Wunder, No. 16-9452, 2019 WL 2928842, at *5
(D.N.J. July 8, 2019) (discussing the futility of the sovereign citizen verbiage in collection claim
for student loan); see also Ibrahim v. Att’y Gen., No. 21-1128, 2021 WL 3012660, at *2 (3d Cir.
July 16, 2021) (describing argument based on Moorish heritage as “frivolous”); Banks v.
Florida, No. 19-756, 2019 WL 7546620, at *1 (M.D. Fla. Dec. 17, 2019), report and
recommendation adopted, 2020 WL 108983 (M.D. Fla. Jan. 9, 2020) (collecting cases and
stating that legal theories espoused by sovereign citizens have been consistently rejected as
“utterly frivolous, patently ludicrous, and a waste of . . . the court’s time, which is being paid by
hard-earned tax dollars”).
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cause of action.”); Walthour v. Herron, No. 10-01495, 2010 WL 1877704, at *3 (E.D. Pa. May
6, 2010) (rejecting claims under § 247 and other criminal provisions because they do “not
provide a private right of action under which Plaintiff may sue”); Sordean v. United States, No.
94-2387, 1995 WL 86548, at *2 (N.D. Cal. Feb. 24, 1995) (rejecting claim under § 247 because
the court was “unwilling to imply a private right of action under Title 18”). Accordingly, this
claim is legally baseless.
2. Constitutional Claims
The Court understands Smith to be bringing her constitutional claims pursuant to 42
U.S.C. § 1983, the vehicle by which federal constitutional claims may be brought in federal
court. Although the Complaint does little to explain the factual basis for Smith’s claims against
each Defendant, the only logical interpretation of the pleading is she is suing Carrington and the
Attorney Defendants for filing and pursuing the foreclosure case against her in state court, and
that she is suing the Judicial Defendants for how they adjudicated the foreclosure case.
a. Carrington and Attorney Defendants
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“The color of state law element is a threshold issue; there is no liability under § 1983 for those
not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
Whether a defendant is acting under color of state law depends on whether there is “such a close
nexus between the State and the challenged action’ that seemingly private behavior may be fairly
treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal
quotations omitted). “To answer that question, [the United States Court of Appeals for the Third

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Circuit has] outlined three broad tests generated by Supreme Court jurisprudence to determine
whether state action exists: (1) whether the private entity has exercised powers that are
traditionally the exclusive prerogative of the state; (2) whether the private party has acted with
the help of or in concert with state officials; and (3) whether the state has so far insinuated itself
into a position of interdependence with the acting party that it must be recognized as a joint
participant in the challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal
quotations and alteration omitted).
Carrington, a private mortgage servicing company and its attorneys are not state actors.
Indeed, the Third Circuit has explained that “[a]ttorneys performing their traditional functions
will not be considered state actors solely on the basis of their position as officers of the court.”
Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999); see also KamdemOuaffo v. Leblon, 673 F. App’x 223, 226 (3d Cir. 2016) (per curiam) (“Private attorneys—like
the attorney defendants here—generally do not qualify as state actors.”). Furthermore, “merely
resorting to the courts and being on the winning side of a lawsuit does not make a party a coconspirator or a joint actor with the judge.” Dennis v. Sparks, 449 U.S. 24, 28 (1980). Here,
there is no basis from which the Court could conclude that Carrington and its attorneys acted
under color of law in connection with their pursuit of the foreclosure action in state court. In
sum, there is no plausible legal basis for a § 1983 claim against Carrington and the Attorney
Defendants because they are not state actors subject to liability under the statute.
b. Judicial Defendants
Judges are entitled to absolute immunity from civil rights claims that are based on acts or
omissions taken in their judicial capacity, so long as they do not act in the complete absence of
all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Judicial immunity

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extends to § 1983 claims for injunctive relief, since “‘injunctive relief shall not be granted’ in an
action brought against ‘a judicial officer for an act or omission taken in such officer’s judicial
capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.’”
Azubuko v. Royal, 443 F.3d 302, 304 (3d Cir. 2006) (per curiam) (quoting 42 U.S.C. § 1983).
An act is taken in a judge’s judicial capacity if it is “a function normally performed by a judge.”
Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir. 2000). Moreover, “[g]enerally . . .
‘where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity
purposes.’” Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000) (quoting Barnes v.
Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)).
The Judicial Defendants all presided over the foreclosure case at some point and clearly
had jurisdiction over it, so they are entitled to absolute judicial immunity from claims based on
their judicial and case management decisions, and their overall handling of the foreclosure case.
See, e.g., Gochin v. Markowitz, 791 F. App’x 342, 346 (3d Cir. 2019) (per curiam) (“Gochin’s
claims concern Judge Branca’s performance in the foreclosure action, and ‘[a] judicial officer in
the performance of his duties has absolute immunity from suit and will not be liable for his
judicial acts’” (quoting Azubuko, 443 F.3d at 304)). Although “declaratory relief is available in
some circumstances” despite judicial immunity, Brandon E. ex rel. Listenbee v. Reynolds, 201
F.3d 194, 197-98 (3d Cir. 2000), Smith seeks a declaration that her rights were violated in the
past, which is not a proper basis for declaratory relief because declaratory relief is “prospective
in nature,” CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013). See also
Gochin, 791 F. App’x at 346 (since declaratory relief is prospective in nature, plaintiff was “not
entitled to a declaration that Judge Branca previously violated her rights in the forfeiture

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action”). Accordingly, Smith has also failed to allege a legal basis for her claims against the
Judicial Defendants.
IV.

CONCLUSION
For the foregoing reasons, the Court will grant Smith leave to proceed in forma pauperis,

and dismiss her Complaint. The Court concludes that amendment would be futile because Smith
cannot cure the defects in her claims. An Order follows, which dismisses this case.

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