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Tornello Fontaine Pierce El Bey v. Cooper

United States District Court, W.D. North Carolina, Charlotte Division

August 24, 2017



          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court following the filing of several Motions to Dismiss by Defendants pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Docs. Nos. 39, 41, 44, 47, 48, [1] 49). Defendants Barnes, Schatzman, and Joines also seek pre-filing injunctions and ask this Court to impose sanctions against Plaintiff. (Doc. No. 40, 48, 50). This matter is also before the Court on Plaintiff's responses to those motions and his requests for injunctive relief. (Docs. Nos. 38, 52, 55, 57). The Court issued a notice to Plaintiff, who appears pro se, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the burden he carries in responding to Defendants' motions, and all motions have been fully briefed. For the reasons that follow, Plaintiff's request for injunctive relief is denied, Defendants' motions to dismiss are granted, and Defendants' motions for a pre-filing injunction are denied at this time.


         On June 1, 2016, this Court issued an order denying Plaintiff's request for injunctive relief and granting Defendants' previous motions to dismiss. (Doc. No. 31). Plaintiff appealed to the Fourth Circuit, which ruled to dismiss and remand the order with instructions to allow Plaintiff to file an amended complaint. (Doc. No. 36). Plaintiff subsequently amended his complaint (Doc. No. 38), and Defendants submitted new Motions to Dismiss. (Doc. No. 39, 41, 44, 47, 48, 49). The Court notes at the outset that despite an opportunity to amend his pleadings, Plaintiff's Amended Complaint is-in large part-very similar to his Original Complaint and includes many of the same “causes of action” and other fantastical allegations without much reference to facts to support such claims.


         Plaintiff, who appears pro se, commenced this suit against a variety of public officials. Defendant Roy Cooper previously served as the Attorney General of North Carolina and currently serves as the Governor of the State. Defendant Pat McCrory is the previous governor of North Carolina. Defendant B.J. Barnes is the Sheriff of Guilford County, North Carolina. Defendant William T. Schatzman is the Sheriff of Forsyth County. Defendant James Allen Joines is the Mayor for the City of Winston-Salem, North Carolina. Defendant Nancy Vaughan is the Mayor for the City of Greensboro, North Carolina.

         Plaintiff filed his amended complaint in the Western District of North Carolina on December 6, 2016. (Doc. No. 38). The Court notes at the outset that it is difficult to identify specific claims and causes of action within Plaintiff's Complaint.[2] The first discernable claim appears to be against Defendants Schatzman and Vaughan for transporting Plaintiff to a detention center and setting bail. Id. at 5. The second claim seems to be against all Defendants, claiming each has coerced Plaintiff into revealing his Social Security number for “capital gain for the private corporation.” Id. Plaintiff's next cause of action appears to be one of unlawful arrest. Plaintiff alleges that while he was “exercising private rights of traveling, ” Defendant Joines “demanded payment of ransom” and subsequently kidnapped, harassed, caused duress, and labeled Plaintiff as a “Sovereign Citizen.” Id. at 6. Plaintiff includes Schatzman in this claim and asserts that Schatzman took Plaintiff's fingerprints and pictures under duress. Id. Plaintiff then claims that his name has been copyrighted since 2009, and, accordingly, all Defendants have infringed upon this copyright. Id. at 14. Plaintiff claims he has not filed suit to harass Defendants, but in “good faith, good conscience, and clean hands” to stop Defendants from harassing and slandering him. Id. at 9.

         In the Amended Complaint, Plaintiff seeks a variety of relief for the alleged injuries. Plaintiff asks for removal of his fingerprints and pictures from government databases. Id. at 14. Plaintiff requests the return of his cell phone, as well as the return of an “International Driving Permit” and “Muur's Identification Cards.” Id. Plaintiff further requests that his criminal record be expunged and his nursing license granted. Id. Plaintiff asks that he and his family be placed on a State “do not detain, do not disturb” list, and that each Defendant pay the fee for filing, taxes, and damages caused to himself and his automobile. Plaintiff also claims his name is trademarked and asks that it be declared private property. Id.

         All Defendants have moved to dismiss for lack of subject matter jurisdiction over Plaintiff's claims under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Some Defendants have also asserted Plaintiff failed to follow the pleading requirements in Rule 8(a) and filed suit in the improper venue under Rule 12(b)(3) as grounds for dismissal. This Court issued a Roseboro notice on December 29, 2016, to notify Plaintiff of his burden to respond to Defendants' motions.[3] (Doc. No. 53).

         Plaintiff filed a document titled “Response to State Agent: Attorney” (Doc. No. 52) on December 28, 2016. Plaintiff also filed documents titled “Affidavit Respond to State Agents-Attorneys, ” (Doc. No. 55) and “Respond to State Agent: Attorney” (Doc. No. 57) on January 9 and 18, 2017. As with previous filings, it is unclear to this Court as to what relief Plaintiff seeks. At best, all pleadings appear to ask this Court to grant injunctive relief. Therefore, this Court liberally construes these documents to be motions seeking injunctive relief.


         For a federal court to adjudicate a matter, it must first have subject matter jurisdiction. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005). A court may have subject matter jurisdiction either under federal question, 28 U.S.C. § 1331 (2012), diversity jurisdiction, 28 U.S.C. § 1332 (2012), or supplemental jurisdiction, 28 U.S.C. §1367 (2012). A court will have jurisdiction under federal question if a cause of action is created by federal law. Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808 (1968). Federal question must be clearly established in a plaintiff's well-pleaded complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987). If a court has original jurisdiction through federal question, it will also have supplemental jurisdiction over all other claims that are part of the same case or controversy. 28 U.S.C. § 1367. A court will have diversity jurisdiction in cases between citizens of different states where the amount in controversy is greater than $75, 000. 28 U.S.C. § 1332. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. Pro. 12(h)(3).

         The plaintiff has the burden of establishing subject matter jurisdiction. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In evaluating a motion to dismiss pursuant to Rule 12(b)(1), courts apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material facts exists. Richmond, Fredricksburg, & Potomac R.R. Co. v. United States, 945 F.3d 765, 768 (4th Cir. 1991). The moving party prevails on a Rule 12(b)(1) motion to dismiss “if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. at 768.

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows defendants to move for dismissal when a plaintiff has not stated a claim that is recognized by law. In order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, Plaintiff's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In order to be plausible, a complaint must contain sufficient factual matter “that allows the court to draw the reasonable inference that the defendant is liable.” Id. Rule 8(a) requires that a plaintiff's complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a). While a high level of factual detail is not required, a complaint needs more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Furthermore, a complaint must be “clear enough to enable the Defendant to know how to defend himself.” North Carolina v. McGuirt, 114 Fed.App'x. 55, 558 (4th Cir. 2004).

         Although pleadings from pro se litigants are entitled to some leniency, they are still bound to follow the rules of procedure. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”). While a pro se complaint must be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), the liberal construction requirement will not permit a district court to recognize a clear failure to allege facts in the complaint which set forth a claim that is cognizable under federal law. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

         IV. ...

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