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)

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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. § § § § § § § § § 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 Strikes@txs.uscourts.qov. 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 6 -

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