Johnson et al v. United States

Filing 7

ORDER. Signed by Judge Samuel H. Mays, Jr on 09/23/2013. (Main Document 7 replaced on 9/23/2013) (Downer, Josh).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MARKAVIOUS JOHNSON AND
JAMES THOMAS, JR.,

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Plaintiffs,
vs.
UNITED STATES,
Defendant.

No. 13-2312

ORDER

Before the Court is the Magistrate Judge‘s August, 27 2013
Report

Recommending

sua

(Report, ECF No. 5.)

sponte

Dismissal

(the

―Report‖).

On May 16, 2013, Plaintiffs Markavious

Johnson and James Thomas, Jr. filed a joint pro se ―Complaint
for Civil Penalties, Injunction, Admiralty Maritime Claim and
Declaratory Relief – Seamen.‖
both

Plaintiffs

signed

the

(Complaint, ECF No. 1.)
Complaint,

only

Johnson

motion seeking leave to proceed in forma pauperis.

Although
filed

a

(ECF No. 2.)

The Court referred the case to United States Magistrate Judge Tu
M. Pham on May 20, 2013.

(Order of Reference, ECF No. 3.)

On

June 26, 2013, the Magistrate Judge granted Johnson leave to
proceed in forma pauperis.

(ECF No. 4.)

On August 27, 2013,

the Magistrate Judge entered the Report recommending that the

Complaint

be

dismissed

sua

sponte.

(Report,

ECF

No.

5.)

Johnson filed a pro se objection to the Report on September 11,
2013.

(Objection, ECF No. 6.)

Thomas has not objected.

For

the following reasons, the Court OVERRULES Johnson‘s objection
and ADOPTS the Magistrate Judge‘s Report.

The

Complaint is

DISMISSED.
I.

Background
On May 16, 2013, Plaintiffs Markavious Johnson and James

Thomas, Jr. filed a joint pro se Complaint seeking alternative
status ―delineat[ion] in Passport Vital Records via. FS-240 form
consular report of birth abroad.‖
claim

that

because

they

an

legalization

did

not

Apostle
of

require

abolished

Foreign

Public

(Compl. At 7.)
a

―report

the

of

Plaintiffs
birth

requirement

Documents‖

and

abroad

for

that

the

―[t]he

National Bank Act sec 24 also requires upon the cancellation of
those

notes

Arguing

that

that

the

the

records

be

controversy

burned

should

to

be

ashes.‖

decided

(Id.)

―upon

the

principles of Jus Sanguinis not jus soli in regards to [their]
status,‖

plaintiffs

seek

rule 57 of the F.R.C.P.‖

an

injunction

―in

accordance

[with]

(Id. at 7, 8.)

The Magistrate Judge found that the Complaint contained no
―factual allegations that could give rise to any plausible cause
of action‖ and recommended dismissal.
objected,

claiming

that

he

had
2

the

(Report at 2.)
right

to

Johnson

change

his

nationality

―based

off

of

blood

type

which

is

evidencing [his] aboriginal National Status.‖

in

fact

O+

(Objection, ECF

No. 6 at 1-2.)

Citing the ―hybrid status created through the

Treaty

for

of

Empire,‖

Paris
and

his

all

subjects

affidavit

of

Spain

e.g.

authenticating

the

his

Moorish

―Apostilled

certificate no. 13-3371,‖ Johnson argues that ―there is no issue
of material fact and [he is] entitled to judgment as a matter of
law.‖
II.

(Objection, ECF No. 6.)

Thomas has not objected.

Jurisdiction and Standard of Review

The court is required to screen in forma pauperis
complaints and to dismiss any complaint, or any portion thereof,
if the action (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. § 1915(e)(2).
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of district
court duties to magistrate judges.
237

F.3d

States,

598,
490

602

U.S.

(6th
858,

Cir.

See United States v. Curtis,

2001)

869-70

(citing

(1989));

Gomez

see

v.

also

Peterson, 67 F. App‘x 308, 310 (6th Cir. 2003).

United

Baker

v.

―A district

judge must determine de novo any part of a magistrate judge‘s
disposition that has been properly objected to.‖
P.

72(b);

28

U.S.C.

§

636(b)(1)(C).
3

After

Fed. R. Civ.
reviewing

the

evidence, the court is free to accept, reject, or modify the
proposed findings or recommendations of the Magistrate Judge.
28 U.S.C. § 636(b)(1)(C).

The district court is not required to

review — under a de novo or any other standard — those aspects
of the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985).

The district court

should adopt the findings and rulings of the Magistrate Judge to
which no specific objection is filed.

Id. at 151.

In assessing whether a complaint states a claim upon which
relief may be granted, the Court applies the standards under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Rule 12(b)(6), the

Under

Court must construe the complaint in the

light most favorable to the plaintiff and accept all well-pled
factual

allegations

as

true.

League

of

United

Latin

Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
plaintiff

can

consistent
Atlantic
standard

support

with

Corp.

the
v.

claim

―by

allegations

Twombly,

requires

conclusions.

a

more

550
than

showing

in

any

set

of

Am.
A

facts

the

bare

Bell

544,

U.S.

complaint.‖
563

This

(2007).

assertions

of

legal

Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356,

361 (6th Cir. 2001).

―[A] formulaic recitation of the elements

of a cause of action will not do.‖

Twombly, 550 U.S. at 555.

Any claim for relief must contain ―a short and plain statement
of the claim showing that the pleader is entitled to relief.‖
4

Erickson

v.

Pardus,

551

U.S.

89,

93

(2007)

(per

curiam).

―Specific facts are not necessary; the statement need only ‗give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.‘‖

Id. (quoting Twombly, 550 U.S.

at 555).
Nonetheless, a complaint must contain sufficient facts ―to
‗state a claim to relief that is plausible on its face‘‖ to
survive a motion to dismiss.

Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
plausibility

standard

is

not

akin

to

a

―The

‗probability

requirement,‘ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.‖
U.S. at 556).
of

action,

Id. (citing Twombly, 550

―Threadbare recitals of the elements of a cause

supported

by

mere

conclusory

statements,

do

not

suffice.‖

Id. at 1949 (citation omitted).

A plaintiff with no

facts

―armed

conclusions‖

and

with

nothing

more

―unlock the doors of discovery.‖
―Pro

se

complaints

are

than

cannot

Id. at 1950.

to

be

held

to

less

stringent

standards than formal pleadings drafted by lawyers, and should
therefore be liberally construed.‖

Williams v. Curtin, 631 F.3d

380, 383 (6th Cir. 2011)(internal quotation marks omitted).

Pro

se litigants, however, are not exempt from the requirements of
the Federal Rules of Civil Procedure.

See Brown v. Matauszak,

No. 09-2259, 2011 WL 285251, at *613 (6th Cir. Jan. 31, 2011)
5

(―[A] court cannot create a claim which [a plaintiff] has not
spelled

out

omitted).

in

his

pleading‖)

(internal

quotation

marks

―While courts are properly charged with protecting

the rights of all who come before it, that responsibility does
not encompass advising litigants as to what legal theories they
should pursue.‖

Young Bok Song v. Gipson, No. 09-5480, 2011 WL

1827441, at *510 (6th Cir. May 12, 2011).
III. Analysis
The Magistrate Judge found that the ―complaint is devoid of
factual matter that would allow the court to draw a reasonable
inference

that

misconduct.‖
678).

the

United

theory

lacking merit.

is

liable

for

any

alleged

(Report, ECF No. 5 at 7)(citing Iqbal, 556 U.S. at

The Court agrees.

citizen‖

States

The Complaint relies on the ―Moorish

consistently

rejected

by

Federal

courts

as

See, e.g., United States v. Stokes, No. 3:12-cr-

00566, 2013 WL 2387763 (N.D. Ohio May 30, 2013); United States
v. Burris, No. 06-4874, 2007 WL 1891874 (4th Cir. May 25, 2007);
United States v. Roberson, No. 06-4874, 2006 WL 2077144 (7th
Cir. July 2, 2006); Ward–El v. Barrett, No. 12-14282, 2012 WL
5929928 (E.D.

Mich.

Nov. 27,

2012);

Jackson–El v. State and

Federal Plaintiffs in General, No. 1:11-cv-278, 2011 WL 1584606
(W.D. Mich. April 26, 2011); Allah El v. District Attorney for
Bronx County, No. 09 CV 8746(GBD), 2009 WL 3756331 (S.D.N.Y.

6

Nov. 4, 2009).

The Complaint fails to state a claim and must be

dismissed under 28 U.S.C. § 1915(e)(2).
IV.

Conclusion

For
OVERRULED.

the

foregoing

reasons,

Johnson‘s

objection

is

Thomas has not objected to the Report and the time

to do so has passed.

The Court ADOPTS the Magistrate Judge‘s

Report and Recommendation and the Complaint is DISMISSED.
So ordered this 23rd day of September, 2013.
s/ Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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