Josiah-El-Bey v. Davis et al

Filing 4

MEMORANDUM OPINION. Signed by Judge Elizabeth K. Dillon on 11/21/2022. (Opinion mailed to Pro Se Party via US Mail)(aab)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DELROY JOSIAH-EL-BEY
also known as Delroy Josiah,
Plaintiff,

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v.
DELROY JOSIAH, et al.,
Defendants.

Civil Action No. 7:22-cv-00597
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Delroy Josiah-El-Bey, an inmate in the custody of the Virginia Department of
Corrections and proceeding pro se, commenced this civil action under 42 U.S.C. § 1983.
Although Josiah-El-Bey has paid the full filing fee, his complaint is nonetheless subject to
screening under 28 U.S.C. § 1915A(a). Under that statute, the court must conduct an initial
review of a “complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The court must
“dismiss the complaint, or any portion of the complaint,” if it is frivolous, fails to state a claim
on which relief may be granted, or “seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b)(1)–(2).
Pleadings of self-represented litigants are given a liberal construction and held to a less
stringent standard than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). Liberal construction does not mean, however, that the court can ignore a
clear failure in pleadings to allege facts setting forth a claim cognizable in a federal district
court. See Weller v. Dep’t of Social Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Applying these standards to Josiah-El-Bey’s complaint, the court concludes that his
complaint is subject to dismissal for failure to state a claim. The court will therefore dismiss
Josiah-El-Bey’s complaint. Because he may be able to amend two of his claims to state a viable

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claim, however, the court will give him an opportunity to file an amended complaint raising only
those two claims.
I. JOSIAH-EL-BEY’S ALLEGATIONS 1
Josiah-El-Bey’s complaint names himself as a defendant (using the name under which he
was convicted, Delroy Josiah), and also names three individuals at Wallens Ridge State Prison
(Wallens Ridge)—Warden Davis, Investigator Rivero, and Major Blevins—and Carl Manis, who
he identifies as the Regional Director of the Virginia Department of Corrections. He also names
John and Jane Doe employees at Wallens Ridge.
Most of his complaint and nearly all of his claims appear to be premised on a
combination of two overarching theories. The first is one that is based on his citizenship as a
“Moor/Moorish American,” which he says means he is not actually “Josiah, Delroy #1028534, or
any variations or derivatives thereof or therefrom” and is instead a citizen of the “Moorish
American nation . . . the modern name of the descendants of the ancient Moabites (the
inhabitants of the North-west and South-west Africa), born in America.” (Compl. 1–2.) The
second is the theory underlying the so-called “sovereign citizen” movement. 2 He contends that,
because he is a “natural born, free, living, breathing, flesh, and blood human,” he is a sovereign
and “not a statutory or United States citizen under the 14th amendment.” (Id. at 1.)

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The complaint also purports to bring claims on behalf of three other prisoners, who Josiah-El-Bey claims
also are being held under unconstitutional judgments. (Compl. 3.) But a litigant unassisted by counsel may not
represent other plaintiffs. Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). If any of those individuals
want to file their own, separate complaints, they may do so.
2
Followers of this movement believe that they have special rights and often object to jurisdiction on
frivolous and unfounded grounds. See United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (noting that
sovereign citizen jurisdictional arguments have “no conceivable validity in American law”); United States v. Jagim,
978 F.2d 1032, 1036 (8th Cir. 1992) (sovereign citizen arguments “are completely without merit, patently frivolous,
and will be rejected without expending any more of this Court’s resources on their discussion”). In some instances,
the two concepts inexplicably began to merge, as summarized by one court. See Abdullah v. New Jersey, No. 12–
4202, 2012 WL 2916738, at *2–3 (D.N.J. July 16, 2012).

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Josiah-El-Bey explains that he is being held against his will at Wallens Ridge, and
pursuant to an “unconstitutional judgment” from the U.S. District Court for the U.S. Virgin
Islands. (Id. at 2.) He states that he has filed a motion to void that judgment before that court,
but it is still pending. His complaint also states that he is not a “Black,” “Negro,” “Colored” nor
“African-American,” (all labels of “Christianized property”). And he devotes many pages of his
complaint to numerous contentions concerning this fact, slavery generally, the relationship
between slavery and its abolition under the Thirteenth Amendment, and statements about
“denationalization” and the 1787 “Treaty of Peace and Friendship between the U.S. and
Morocco.” (Compl. 7–12.) He also attaches to his complaint numerous documents including
proclamations from mayors of several U.S. cities designating a specific week as “Moorish
American Week” in their cities. (See Dkt. No. 1-1.)
It is not necessary to go through these contentions in any detail. Basically, based on a
combination of his Moorish American and “sovereign citizen” assertions, Josiah-El-Bey is
claiming that his incarceration at Wallens Ridge, via an interstate compact with the Department
of Corrections for the U.S. Virgin Islands, has subjected him to the “status of slave,” even though
he is not a slave. (Compl. 9, 10.) As a result, he claims that he is being falsely imprisoned. (Id.
at 9.)
His complaint contains a section titled “Legal Claims,” but that section mostly contains
the same sorts of statements and also claims that he has a constitutional right to use the suffixes
Bey or El (or both) at the end of his names. Presumably, he contends that this right is being
violated, although he does not allege that anyone ever told him he could not use that name. (Id.
at 12.)
In addition to this claim concerning his name—and despite not being listed in the “Legal
Claims” section—other facts in the complaint lead the court to believe that Josiah-El-Bey is
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asserting a retaliation claim. Specifically, he says that on April 25, 2022, he submitted a
complaint to the Grievance Department at Wallens Ridge “asserting [his] true identity and proper
status along with a demand for relief and compensation.” (Id. at 5.) Three days later, he was
taken off of his work assignment as a kitchen worker. After his initial complaint was determined
to be unfounded by defendant Rivero, he appealed. The next day, he was removed from the
“Privilege/Kitchen Pod, along with other Moors/Moorish Americans that voiced a similar
complaint” and they “were all isolated from each other.” (Id.) He grieved the termination of
kitchen employment as an act of retaliation. During the grievance process, Major Blevins
confirmed that he was removed from the kitchen and pod based on his initial complaint, in which
he apparently referred to himself as being treated as a slave.
Josiah-El-Bey requests compensatory and punitive damages and also declarative and
injunctive relief. In particular, he requests a permanent injunction ordering defendants: (1) “not
to apply the status of slave to this Moorish-Plaintiff”; (2) “to acknowledge and not to restrict the
usage of the religious and tribal suffixes of Bey and El’s (or both) annexed to Moors/Moorish
Americans names”; and (3) “to exclude this Moorish-Plaintiff from their interstate corrections
contract agreement.” (Compl. 13.)
II. DISCUSSION
A. Claims Based on Status as Moorish American or Sovereign Citizen
As an initial matter, the court notes that Josiah-El-Bey’s underlying premise regarding his
status as a Moorish American, as a non-United States citizen, or as a sovereign citizen does not
mean that his judgment of conviction was invalid or that he is being unlawfully imprisoned.
Courts have repeatedly rejected such claims, both in the context of challenging the jurisdiction of
criminal courts and in civil cases challenging the propriety of the plaintiff’s incarceration. E.g.
United States v. White, 480 F. App’x 193, 194 (4th Cir. 2012) (rejecting a claim that a federal
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court lacked jurisdiction over a Moorish American because “[n]either the citizenship nor the
heritage of a defendant constitutes a key ingredient to a district court’s jurisdiction in criminal
prosecutions”); Kerr v. Hedrick, 89 F. App’x 962, 964 (6th Cir. 2004) (rejecting as “without
merit” the petitioner’s claim that he was exempt from punishment for his federal crimes because
his rights derived exclusively from the Moorish Science Temple of America); Bond v. N.C.
Dep’t of Corr., No. 3:14-cv-379, 2014 WL 5509057, at *1 (W.D.N.C. Oct. 31, 2014) (stating
that “courts have repeatedly rejected arguments” that a plaintiff is not subject to federal or state
law because of their “Moorish American” citizenship); Jones-El v. South Carolina, No. 5:13-cv01851, 2014 WL 958302, at *8 (rejecting claim based on status as Moorish American and
relying on the Treaty of Peace and Friendship as “completely frivolous, whether raised under §
2254, § 2241, or by way of a civil complaint”); Hampton v. City of Durham, No. 1:10cv706,
2010 WL 3785538, at *2–3 (M.D.N.C. Sept. 22, 2010) (collecting cases and holding that “[a]ny
claims or arguments raised by Plaintiff which are based on his membership in the Moorish
American Nation are frivolous”).
For the same reasons expressed by those courts, Josiah-El-Bey’s claims based on these
theories and principles will be dismissed for failure to state a claim, and the court will not
address them further. Cf. United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (refusing
to expend “any more of the Court’s resources” on discussing sovereign-citizen arguments).
B. Claim Concerning His Name
Josiah-El-Bey also appears to be claiming that he is not being permitted to use El or Bey
as part of their names. It is unclear whether his complaint is alleging that use of his new name is
based on a religious practice or belief, as opposed to a secular one, and it may matter. For
example, in Barrett v. Virginia, 689 F.2d 498, 503 (4th Cir. 1982), the Fourth Circuit held that
“the mere fact that correctional authorities maintain a prisoner’s records in the name he used
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when convicted implicates no constitutional right.” In Ali v. Dixon, 912 F.2d 86 (4th Cir. 1990),
the court recognized the validity of Barrett, but explained that prison officials “may not properly
condition the receipt of services or benefits” upon a prisoner’s waiving his “right to legal
recognition of an adopted religious name.” In Ali, the court explained that the prison could be
required to allow a prisoner to receive services under his new name as a means of
accommodating the prisoner’s free exercise right. 912 F.2d at 90. It also concluded, though, that
there was no First Amendment violation in the prison staff addressing him verbally only by his
committed name and not his new name. Id. at 91.
Here, Josiah-El-Bey does not specifically allege that the desired name change is tied to
his religious belief. Moreover, he does not identify which of the named defendants, if any, he
asked to use El or Bey or who rejected his requests. Importantly, he also has failed to explain or
allege in what context he is asking to use those names (e.g., in wanting others to verbally address
him that way, in identifying him in his official prison record, etc.) And, as the cases cited in the
preceding paragraph make clear, the context will matter. Accordingly, his complaint as currently
pled does not state a viable claim, but it is possible that he may be able to do so by providing
additional factual allegations. Accordingly, the court will dismiss any claim based on his
requesting that VDOC use his El-Bey name, but will grant him leave to amend, should he so
choose.
C. Retaliation Claim
Josiah-El-Bey’s retaliation claim alleges that after he filed a grievance raising his
Moorish American theory and stating that he was effectively a slave, his kitchen job was
terminated. Upon appealing the denial of that grievance, he was moved from the
kitchen/privilege pod.

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To state a retaliation claim, Josiah-El-Bey must set forth facts sufficient to plausibly
allege that: “(1) he engaged in protected First Amendment activity, (2) the defendant took some
action that adversely affected his First Amendment rights, and (3) there was a causal relationship
between his protected activity and the defendant’s conduct.” Martin v. Duffy, 977 F.3d 294, 299
(4th Cir. 2020) (citing Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017)) (alterations omitted).
As to the first element, filing a grievance is protected First Amendment activity. Booker
v. S.C. Dep’t of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (stating that prisoners have a “First
Amendment right to be free from retaliation for filing a grievance”). As to the second, the loss
of a prison job is an adverse action that can satisfy this element. Edwards v. DeBord, No. 7:18CV-00423, 2021 WL 5827324, at *4 (W.D. Va. Dec. 8, 2021), appeal dismissed, No. 22-6046,
2022 WL 2657347 (4th Cir. Apr. 11, 2022) (concluding that termination of a prisoner’s job was
a sufficient adverse action to support a First Amendment retaliation claim); Patel v. Moron, 897
F. Supp. 2d 389, 400 (E.D.N.C. 2012) (same). But lacking here are any allegations that any of
the named defendants were responsible for that adverse action. Josiah-El-Bey explains that
when he grieved the issue, certain of the defendants found his grievances unfounded, but the
denial of a grievance does not generally give rise to constitutional liability. Moone v. Herrick,
No. 7:21CV00472, 2022 WL 4594027, at *9 (W.D. Va. Sept. 29, 2022). Instead, he must show
that a named defendant was the one who took the adverse action. Thus, he has not plausibly
alleged facts to satisfy the entirety of the second element, and his claim thus fails to state a claim
on which relief can be granted, as it is currently pled. As with his claim based on his name,
though, he may be able to state a valid claim with additional factual matter. Thus, the court will
give him an opportunity to file an amended complaint.

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III. OTHER MOTIONS
At the same time he filed his complaint and paid the filing fee, Josiah-El-Bey also filed
two other motions. In the first, reciting some of his same arguments about being a “Moorish
American sovereign,” he moved to proceed in forma pauperis. (Dkt. No. 2.) Because he
already has paid the filing fee, that motion will be denied as moot.
The second motion he titled as a “motion to exclude from the PLRA.” (Dkt. No. 3.) In
it, he again repeats his arguments about being a Moorish American. He then argues that he is a
“Moorish Hostage,” rather than a prisoner. He thus asks the court to exclude him from the
provisions of the Prison Litigation Reform Act. He argues (without citing to any authority )
that the court has authority to grant the motion because every circuit court addressing the issue
has held that the PLRA does not apply to immigration detainees, because they are not prisoners
within the meaning of the act. Although that may well be true, Josiah-El-Bey is not an
immigration detainee. He is a prisoner, despite his arguments to the contrary, and the PLRA is
applicable to this case. This motion will be denied.
IV. CONCLUSION
For the foregoing reasons, the court will summarily dismiss Josiah-El-Bey’s complaint,
without prejudice, pursuant to 28 U.S.C. § 1915A(b)(1), because his allegations fail to state a
claim for which relief may be granted. The court will give Josiah-El-Bey the opportunity to
file an amended complaint within thirty days, but the amended complaint may contain only
allegations concerning the use of his preferred name and regarding his retaliation claim. All
claims that are directly based on his status as a “Moor” or “Moorish American” or so-called
“sovereign citizen” should not be included. Additional instructions regarding any amended
complaint will be set forth in the court’s order. Lastly, his motion to proceed in forma

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pauperis (Dkt. No. 2) will be denied as moot, and his motion to exclude this case from the
PLRA (Dkt. No. 3) will be denied.
An appropriate order will be entered.
Entered: November 21, 2022.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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