Tatum v. United States of America

Filing 9

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 7/8/2015. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. 5 Plaintiff's MOTION for Correction of Case Caption and Type of Action DENIED. 6 Plaintiff's MOTION for 3-Panel Judge Court/Class Certification/Appointment of Counsel DENIED. Action DISMISSED without prejudice for lack of subject matter jurisdiction. Wis. Dept. of Corrections to collect $346.29 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Robert Tatum and Warden at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT L. TATUM,
On behalf of Blacks (African Americans),
Plaintiff,
-vs-

Case No. 15-CV-453

UNITED STATES OF AMERICA,
Defendant.

SCREENING ORDER
The pro se plaintiff, who is incarcerated at the Wisconsin Secure
Program Facility, filed a complaint on behalf of all African American Black
people born in the United States. This matter comes before the Court on the
plaintiff’s petition to proceed in forma pauperis. He has been assessed and
paid an initial partial filing fee of $3.71.
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity, or officer or employee of a
governmental entity.

28 U.S.C. § 1915A(a).

The Court must dismiss a

complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in

law or in fact.

Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.

Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126
F.3d 895, 900 (7th Cir. 1997). The Court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless.

Neitzke, 490 U.S. at 327.

“Malicious,” although sometimes treated as a synonym for “frivolous,” “is more
usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d
1107, 1109-10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
the plaintiff is required to provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his statement need only
“give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of a
cause of action will not do.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 555).

To state a claim, a complaint must

contain sufficient factual matter, accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the

-2-

reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be
enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow
the principles set forth in Twombly by first, “identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by
factual allegations. Id. If there are well-pleaded factual allegations, the court
must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that: 1) he was deprived of a right secured by the Constitution or laws
of the United States; and 2) the deprivation was visited upon him by a person
or persons acting under color of state law.

Buchanan-Moore v. County of

Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of
North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff’s
pro se allegations, “however inartfully pleaded,” a liberal construction. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).

-3-

The plaintiff seeks to bring a class action on behalf of all AfricanAmerican Black people born in the United States, over 20 million people he
states, for damages as the result of slavery. The plaintiff, on behalf of the
class, also seeks damages for two breaches of contract in which the United
States allegedly failed to fulfill the written and verbal contract “to provide
Blacks ‘40 Acres & a Mule’ as Compensation for slave labor and for the
routine and systematic denial of contractual rights secured to Blacks under
the U.S. Constitution.” (ECF No. 1 at 6.) The plaintiff describes his claims as
follows:
(1) The U.S. by its institution of Ami-Slavery committed various
torts against Blacks such as batteries, invasions of privacy,
negligence, intentional infliction of emotional distress,
unlawful imprisonments, and by its institution caused
intentional generational damages, physical, psychological,
emotional, economical, as stated in the facts, obligating the
U.S. to employ equally effective counter-measures as
reparations to correct those damages. The U.S. has not
reasonably attempted effective counter-measures despite its
obligations to Blacks to repair the damages caused by Am.
Slavery.
(2) The U.S. entered into a binding verbal and written contract
with Blacks to prove them ‘40 acres and a mule,’ the
equivalent of a sum in today’s monetary terms, as a payment
for labor services rendered. The U.S. has not fulfilled the
terms of this contract and thereby breached the contract
entitling Blacks to fulfillment of the terms by court order
through their progeny including any due interest and fines.
(3) The U.S. by its enactment and execution of the U.S.
Constitution entered into a written contact with Blacks by
later Amendments entitling Blacks to the contractual rights

-4-

bestowed with intent to ‘secure the Blessing of Liberty’ upon
them as beneficiaries. The U.S. by its representatives has
breached this contract with Blacks by routinely and
systematically denying their contractual rights under the
U.S. Constitution and denying thereby the intended
‘Blessings of Liberty’ entitling Blacks to injunctive and/or
Habeas Corpus relief.
(ECF No. 1 at 11.)

The plaintiff seeks declaratory and injunctive relief,

compensatory damages, and habeas corpus relief.
In addition to the complaint, the plaintiff has filed a motion for
correction of case caption (ECF No. 5) in which he reiterates that this case is a
class action and requests that the caption reflect that to avoid any
misconstruction of the claims. The plaintiff also asserts that this is not a
“prisoner litigation” claim regarding conditions of confinement and, therefore,
the complaint is not subject to screening under the Prison Litigation Reform
Act.1
Lastly, the plaintiff has filed a motion for 3-judge panel, motion for
class certification, and motion for appointment of class and/or interim counsel
(ECF No. 6.) By this motion, the plaintiff asserts that while he believes the
United States Supreme Court is the correct venue for this case, the Supreme
Court will not hear the matter, so at a minimum a 3-judge panel, including at
The Prison Litigation Reform Act’s screening provision states in relevant part:
“The court shall review . . . 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 plaintiff’s complaint falls under this statute.
1

-5-

least one circuit judge, must do so.
Discussion: Standing
“[B]efore a federal court can consider the merits of a legal claim, the
person seeking to invoke the jurisdiction of the court must establish the
requisite standing to sue.” Whitmore v. Arkansas, 495 U.S. 149, 154 (1990).
“Article III, of course, gives the federal courts jurisdiction over only ‘cases and
controversies,’ and the doctrine of standing serves to identify those disputes
which are appropriately resolved through the judicial process.” Id. at 154-55.
The doctrine of standing instructs the Court to determine if a party is
entitled to a federal resolution of his grievance. Swanson v. City of Chetek,
719 F.3d 780, 783 (7th Cir. 2013). A plaintiff must establish three elements to
satisfy the standing requirement: (1) a plaintiff must have suffered an “injury
in fact:” an invasion of a legally protected interest which is concrete and
particularized, and actual and imminent; (2) there must be a causal
connection between the injury and the conduct complained of; and (3) it must
be likely that the injury will be redressed by a favorable decision. Id. (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

“A party

generally must assert his own legal rights and interests, and cannot rest his
claim on the legal rights or interests of third parties.” Swanson, 719 F.3d at
783 (quoting Kowealski v. Tesmer, 543 U.S. 125, 129 (2004) (internal
quotation omitted)).

-6-

In Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995),
descendants of enslaved African-Americans filed a complaint against the
United States government seeking damages due to the enslavement of, and
subsequent discrimination against, African-Americans. The plaintiffs in Cato
alleged injuries based on “disparities in employment, income, and education”
between African-Americans and other racial groups. Id. at 1109. The Cato
court found that such allegations were insufficient to establish an injury
personal to the plaintiffs so as to establish the plaintiffs’ standing; rather,
such injuries were “a generalized, class-based grievance . . . .” Id. Other
courts faced with similar complaints have also found that those plaintiffs had
failed to establish their standing to litigate claims based on continuing
injuries alleged to be the result of slavery. See, e.g., Bell v. United States, No.
Civ. A. 301CV0338D, 2001 WL 1041792, at *2 (N.D. Tex. Aug. 31, 2001)
(plaintiff lacked standing to file suit against United States government
seeking damages for the enslavement of African-Americans); Bey v. United
States DOJ, No. 95 CIV 10401, 1996 WL 413684, at *1 (S.D. N.Y. July 24,
1996) (same); Langley v. United States, No. C 95-4227, 1995 WL 714378, at *2
(N.D. Cal. Nov. 30, 1995) (same); Himiya v. United States, No. 94 C 4065,
1994 WL 376850, *2 (N.D. Ill. July 15, 1994) (“Although it is extremely
regrettable that this country's history, as well as the history of many other
countries, includes a significant history of slavery, the plaintiff does not have

-7-

proper standing under the law to recover damages for this reprehensible time
period.”); see also Long v. United States, Civil Action No. 1:06CV-P176-M,
2007 WL 2725973 (W.D. Ky. 2007); Hamilton v. United States, Civil Action
No. 1:10-CV-808, 2012 WL 760691 (E.D. Tex. 2012).
The direct victims of slavery are the plaintiff’s ancestors.

As the

Seventh Circuit Court of Appeals explained:
[T]here is a fatal disconnect between the victims and the
plaintiffs. When a person is wronged he can seek redress, and if
he wins, his descendants may benefit, but the wrong to the
ancestor is not a wrong to the descendants. For if it were, then
(problems of proof to one side) statutes of limitations would be
toothless.
A person whose ancestor had been wronged a
thousand years ago could sue on the ground that it was a
continuing wrong and he is one of the victims.
In re African-American Slave Descendants Litig., 471 F.3d 754, 759 (7th Cir
2006). The plaintiff has failed to demonstrate the requisite standing to invoke
this Court’s jurisdiction. See e.g., Cato, 70 F.3d at 1109-10 (finding that the
plaintiff does not “have standing to litigate claims based on the stigmatizing
injury to all African Americans caused by racial discrimination” and that “she
does not trace the presence of discrimination and its harm to the United
States rather than to other persons or institutions”).
Given that the plaintiff lacks standing on his own, he does not have
standing to represent the interest of all African Americans born in the United
States. Even if the plaintiff had standing to represent all African Americans,

-8-

as a pro se litigant the plaintiff may only represent himself. See Green v.
Benden, 281 F.3d 661, 665 (7th Cir. 2002); see also 28 U.S.C. § 1654.
ORDER
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave
to proceed in forma pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for correction
of case caption and type of action (ECF No. 5) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for 3-panel
judge court, class certification, and appointment of class and/or interim
counsel (ECF No. 6) is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is
DISMISSED

WITHOUT

PREJUDICE

for

lack

of

subject

matter

jurisdiction.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
prison trust account the $346.29 balance of the filing fee by collecting monthly
payments from the plaintiff’s prison trust account in an amount equal to 20%
of the preceding month’s income credited to the prisoner’s trust account and
forwarding payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments
shall be clearly identified by the case name and number assigned to this

-9-

action.
IT IS ALSO ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.

Dated at Milwaukee, Wisconsin, this 8th day of July, 2015.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

- 10 -