Bruce v. Atlas et al

Filing 9

ORDER OF DISMISSAL denying 6 MOTION to Vacate. It is ORDERED that this case is DISMISSED WITH PREJUDICE as frivolous and malicious. It is further ORDERED that all other pending motions are DENIED AS MOOT. Email sent to Manager of Three Strikes List. (Signed by Judge Ewing Werlein, Jr) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
April 14, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KENNETH ROBERT BRUCE,
Plaintiff,

v.
NANCY FRIEDMAN ATLAS, et al.,
Defendants.

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§
§
§
§
§
§
§
§

David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3794

ORDER OF DISMISSAL

Plaintiff Kenneth Robert Bruce, currently incarcerated at the
Federal Correctional
civil

action

against

Institution in Bastrop,
the

presiding

judge

Texas,

and

filed this

prosecutors

who

prosecuted him in his federal criminal case. See Docket Entry No.
1 ("Original Bill for Equitable Relief/Writ of Sequestration and
Other Injunction Relief against All

Defendants") .

Among other

frivolous allegations, Plaintiff contends that his conviction is a
"mortgage" held in trust and that defendants owe him millions of
dollars in connection with his conviction.

I .

See id.

Background

On March 19, 2015, a jury convicted Plaintiff on all twentysix counts of false claims against the United States and aiding and
abetting in violation of 18 U.S.C.

§

287 and

§

2, and on one count

of interference with the administration of the Internal Revenue
laws and aiding and abetting in violation of 26 U.S.C.

§

7212(a)

and 18 U.S.C.
No.

§

H-14-249,

Verdict)

See United States of America v. Bruce, Crim.

2.
at

Docket

Entry

No.

(Atlas, J., presiding).

78

(S.D.

Tex.

2014)

(Jury

On June 22, 2016, Plaintiff was

sentenced to 180 months on counts 1-26 with three years' supervised
release and one year as to Count 27, to run concurrently with the
180-month sentence,

and was

ordered to pay over $3 million in
See id.

restitution to the Internal Revenue Service.
Entry

No.

Plaintiff

127.

conviction on July 20,

filed

2016.

Id.

a

Notice

of

at Docket

Appeal

at Docket Entry No.

of
138.

his
On

October 12, 2016, the United States Court of Appeals for the Fifth
Circuit dismissed Plaintiff's appeal of his conviction for failure
to prosecute.
2016,

See id. at Docket Entry No. 170.

On December 28,

Plaintiff filed the present lawsuit against the Honorable

Nancy F. Atlas and the prosecutors in his criminal case, without
payment of the filing fee.

See Docket Entry No. 1.

II.
On January 10,

2017,

Discussion

the Court notified Plaintiff that his

pleadings were deficient and directed plaintiff either to pay the
filing fee or to submit a properly supported motion for leave to
proceed in forma pauperis and a certified copy of his inmate trust
account.

(Docket Entry No. 3).

The Court's notice specifically

advised plaintiff that this action would be dismissed pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure if he failed to
2

comply as directed within thirty days of the date of the notice.
To

date,

Plaintiff

has

not

responded

to

the

Court's

notice

directing him to pay the filing fee or submit a properly supported
motion to proceed in forma pauperis and a certified copy of his
inmate

trust

account

Plaintiff

statement.

has

not

otherwise

attempted to comply.
Plaintiff's failure to comply with the Court's instructions
leads

the

Court

to

conclude

that

he

Therefore,

under

the

inherent

powers

lacks

necessarily

district court to manage its own affairs,
that dismissal is appropriate.

due

diligence.

vested

in

a

this Court determines

See FED. R. Crv. P. 41(b); Slack v.

McDaniel, 120 S. Ct. 1595, 1607 (2000)

(stating that "[t]he failure

to comply with an order of the court is grounds for dismissal with
prejudice"); Larson v. Scott, 157 F. 3d 1030 (5th Cir. 1998)

(noting

that a district court may sua sponte dismiss an action for failure
to prosecute or to comply with any court order).
Moreover,
malicious,

this

case

must

be

dismissed

as

frivolous

and

because it lacks any basis in law or fact and seeks

monetary damages from defendants who are immune from such relief.
See 28 U.S.C.

Court

may

appropriate,

§

1915A(b) (1),

scrutinize

the

(2).
basis

Under 28 U.S.C.
of

the

§

complaint

1915A, the
and,

if

dismiss the case without service of process if the

lawsuit is frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant

3

who is immune from such relief.

See

id.

An action is frivolous if

it lacks any arguable basis in law or fact.

Neitzke v. Williams,

109 S. Ct. 1827, 1831-32 (1989); Talib v. Gilley, 138 F.3d 211, 213
(5th Cir. 1998).

A complaint lacks an arguable basis in law if it

is based on an indisputably meritless legal theory, such as if the
complaint alleges violation of a legal interest which clearly does
not exist.

Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

Defendant Judge Nancy F. Atlas is immune from liability for
damages for her role in Plaintiff's conviction.
Ray,

87

S.

Ct.

1213,

1217-18

(1967)

See

Pierson v.

("Few doctrines were more

solidly established at common law than the immunity of judges from
liability for damages

for

acts committed within their

judicial

jurisdiction."); see also Stump v. Sparkman, 98 S. Ct. 1099, 110405

(1978);

Bauer v.

Texas,

341

F.3d

352,

357

(5th Cir.

2003)

("Judges enjoy absolute immunity from liability for judicial or
adjudicatory acts.").
protects

judges

not

The doctrine of absolute judicial immunity
only

from

liability,

Mireles v. Waco, 112 S. Ct. 286, 288
faith

do

not

overcome

judicial

(1991).

immunity,

allegations of procedural errors.

but

See

also

from

suit.

Allegations of bad
id.,

and

Mitchell v.

neither

McBryde,

do
944

F.2d 229, 230 (5th Cir. 1991).
Similarly, the prosecutors named as defendants are also immune
from liability for

their

Imbler v.

96 S. Ct.

Pachtman,

roles

in prosecuting

984,

4

993-94

(1976)

Plaintiff.

See

(holding that a

prosecutor

initiating

and

pursuing

a

criminal

conviction

is

absolutely immune from civil suit for damages); see also Burns v.
Reed, 111 S. Ct. 1934, 1941-42 (1991)

(holding that a prosecutor is

absolutely immune from liability for appearing as a lawyer at a
hearing for the government in the prosecution of a defendant) .
Plaintiff is attempting to sue the defendants for their roles in
prosecuting him, essentially attacking the judgment of conviction.
Therefore, defendants are absolutely immune from liability in this
case.
Furthermore, Plaintiff's purported "cause of action" states no
cognizable claim as a matter of law.

Plaintiff attempts to sue

defendants in their official capacities and in their capacities as
"implied trustees" declaring that there is a "judgment deed" in
United States v.
mortgage."

Bruce and that his conviction is an "equitable

See Docket Entry No. 1 at 4-5. Plaintiff is apparently

attempting to assert a sovereign citizen-type claim to challenge
his conviction,

which "has no conceivable validity in American

law."

United States v. Schneider,

1990);

see also Berman v.

910 F.2d 1569, 1570

Stephens, Civil No.

3622694, at *2 (N.D. Tex. June 10, 2015)

4:14-860,

(7th Cir.
2015 WL

(finding that a prisoner's

"reliance on the UCC or a so-called 'sovereign citizen' theory that
he is exempt from prosecution and beyond the jurisdiction of the
state

or

federal

courts

is

frivolous")

(collecting

cases)

Accordingly, Plaintiff's case must be dismissed as frivolous.

5

III.

ORDER

Based on the foregoing, it is hereby
ORDERED

that

this

case

is

DISMISSED

with

frivolous and malicious pursuant to 28 U.S.C.

§

prejudice

1915A(b);

as

it is

further
ORDERED that Plaintiff's Motion to Vacate (Docket Entry No. 6)
is DENIED as MOOT; it is further
ORDERED that all other pending motions, if any, are DENIED as
MOOT.
This dismissal

u.s.c.

§

1915(q).

constitutes

a

"strike"

for purposes

of 28

The Clerk of Court shall send a copy of this

dismissal to the Clerk of the United States District Court for the
Southern District of Texas,

Houston Division,

515 Rusk Street,

Houston, Texas, 77002, Attention: Three-Strikes List Manager, by
email at Three [e-mail].
The Clerk will enter this Order, providing a correct copy to
all parties of record.
SIGNED at Houston, Texas, on this

jj, T!fay

of April, 2017.

EWI
WERLEIN, JR.
UNITED STATES DISTRICT JUDG

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