Opinion
5:21-CV-00378-D
10-18-2023
DEVON A. GAYLES-EL, Plaintiff, v. ROY COOPER, et al, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This pro se case is before the court on the application by plaintiff Devon A. Gayles-El (“plaintiff” or “Gayles-El”) to proceed in forma pauperis [DE-4] and for a frivolity review of the complaint [DE-1] pursuant to 28 U.S.C. § 1915. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1) for a memorandum and recommendation and for a frivolity review. See [DE-8]. The court finds that plaintiff has demonstrated appropriate evidence of his inability to pay the required court costs, and the undersigned ALLOWS the application to proceed in forma pauperis. [DE-4].
To the extent that plaintiff's allegations that “[as] the small claims court is administrative[,] Magistrate Powell does not have jurisdiction to listen to, hear arguments, presentation or rational” (Compl. [DE-1] at 10) or “Centralized Small Claims is not an Article III court; and has no delegated jurisdiction/authority under the Supreme Law of the Land, and unconfirmed by the Congress of the United States” ([DE-13] at 3), can be construed as an objection to the undersigned's authority to provide a memorandum and recommendation on this matter, this motion is properly before the undersigned United States magistrate judge for a memorandum and recommendation by order of United States District Judge James C. Dever III. [DE-8]. Section 636(b)(1) provides that:
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement....28 U.S.C. § 636(b)(1).
For the reasons set forth below, the undersigned RECOMMENDS that the court DIMISS plaintiff's complaint [DE-1] as frivolous and for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).
Additionally, as discussed below, the court ORDERS that plaintiff's tax documents [DE-17, -18] be SEALED, and DENIES plaintiff's request for discovery (Compl. [DE-1] at 8) as premature.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). Based on the information in the motion to proceed in forma pauperis, the court finds that plaintiff has adequately demonstrated his inability to prepay the required court costs. The court therefore ALLOWS plaintiff's motion to proceed in forma pauperis [DE-4].
ORDER TO SEAL TAX DOCUMENTS
On January 30, 2023, and February 21, 2023, plaintiff filed a 1040 IRS form [DE-17] and a corrected 1099-OID form [DE-18] (together, “plaintiff's tax documents”), in what appears to be an attempt to use these documents to pay plaintiff's filing fee. (See [DE-17] (Plaintiff's Form 1040); [DE-18] (Plaintiff's Form 1099-OID)). The information in these documents does not change the court's conclusion above on plaintiff's inability to prepay the required court costs and in light of the court's granting of plaintiff motion to proceed in forma pauperis [DE-4], the court need not further discuss the legal relevance of these documents. However, in light of the personal information included in these filings, the court ORDERS that plaintiff's tax documents [DE-17, -18] be SEALED.
ORDER ON PLAINTIFF'S REQUEST FOR DISCOVERY
Plaintiff appears to make discovery-related requests and demands in his complaint. See, e.g., Compl. [DE-1] at 8 (alleging that plaintiff's request to “to make a physical inspection and verify and witness [the acts alleged in the Notice and Demand (Commercial Affidavit)] . . . is a Lawful Demand and Request, and is hereby issued under the ‘Rules of Discovery'”)).
As plaintiff's complaint is subject to the instant frivolity review, plaintiff's discovery requests were premature. See Thompson v. United States, No. 5:17-CT-3145-FL, 2018 WL 3594981, at *1 (E.D. N.C. July 26, 2018) (“This motion to compel was filed before the court completed its frivolity review, and no defendant has been served. Therefore, the motion is premature.”); Audette v. United States, No. 5:17-CT-3094-FL, 2017 WL 4366724, at *1 (E.D. N.C. Oct. 2, 2017) (“[P]laintiff seeks the production of discovery in support of his claims. Plaintiff's claims have not yet survived frivolity review, and no defendant has been served. Accordingly, this request is DENIED, as premature.”). Accordingly, the court DENIES plaintiff's discovery requests (Compl. [DE-1] at 8) as premature.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PLAINTIFF'S ALLEGATIONS
On September 20, 2021, plaintiff filed a handwritten complaint against 23 defendants: Roy Cooper, in his capacity Governor of North Carolina (“Gov. Cooper”); Todd Ishee, Erik A. Hooks; Timothy D Moore; Brandeshawn Harris; Carolina R. Taylor; Donald Green; Richard T. Duke, Jr.; Christopher Jones; Joseph Cooper; Alex Sinka; Cynthia J. Pittman; Jake Friday; Marcus Anthony; Kenneth Washington; Angela Pittman; Angela Johnson; Charles Jones; Tracy Boone; Luther Jones; Kenyatta Andrews; Deon Flood; and Danita Whittaker. Compl. [DE-1] at 2. Plaintiff subsequently filed hundreds of pages of documents ostensibly in support of this original complaint, including proposed writs, affidavits, notices, proclamations, mail certifications, and financial documents. See [DE-7; -9; -10, -11, -12, -13, -14, -15, -16, -17, -18]. Many of these documents consist of collections of disjointed excerpts or quotations from a myriad of documents including: The Treaty of Peace and Friendship of 1836 A.D. between Morocco and the United States (the “Treaty of Peace and Friendship”) (Compl. [DE-1] at 6, 8; [DE-7-3] at 4; see also [DE-7-2] at 3537); the Zodiac Constitution ([DE-7-2] at 23-34); treatises on Moorish history and ideology (see, e.g., id. at 7-12, 38-39); a state record from the South Carolina House of Representatives (id. at 54); The Universal Declaration of Human Rights (id. at 45-47); The United States Constitution (id. at 40); and assorted federal court opinions (see, e.g., Compl. [DE-1] at 4).
All citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
In his complaint, plaintiff alleges the following facts:
1. On July 14th, 2021, a Notice and Demand (Commercial Affidavit) was sent certified mail, return receipt to Roy Cooper, et al (acting Governor of the State of North Carolina) requesting certified and verified official copies of his Delegation of Authority order to deprive a Moorish American National (A Muur) of his protected and secured Substantive Right to due process and equal protection, by August 14th, 2021 to make a physical inspection and verify and witness the same. This was a lawful Demand and Request, under the rule of Discovery. It was further stated to provide the information or remedy the misconduct within thirty (30) days of receipt of the Notice and Demands (Commercial Affidavit(s)).
2. On [July 14, 2021], Roy Cooper, et al received the Notice and Demand(s).
3. On [August 14, 2021], thirty days (30) after the Notice and Demand was sent certified return receipt mail to Roy Cooper, et al. The Notice of Default Judgment
was submitted as the request made was not honored.
4. I state for the record a contract has to be disclosed as this is the premise for this claim and without it there can be no claims - ALL LAW IS CONTRACT.Compl. [DE-1] at 8-9.
For his legal claims, plaintiff alleges a violation of his due process under the Fourth and Fifth Amendments of the United States Constitution (Compl. [DE-1] at 12) (demanding “Due Process as protected by the Forth [sic] (4th) and Fifth (5th) Amendments of the Organic Constitution for the United States of America (Republic)”).
To the extent that plaintiff's cryptic pseudo-legal declarations are based on one or more cognizable causes of action, these are buried in hundreds of pages of obscure documents. For this reason alone, plaintiff's claim is subject to dismissal. B.D. ex rel. Dragomir v. Griggs, No. 1:09-CV-439, 2010 WL 2775841, at *7 (W.D. N.C. July 13, 2010), aff'd, 419 Fed.Appx. 406 (4th Cir. 2011) (The court “is not obligated, even for a pro se litigant, to comb through volumes of documents searching for claims.”); see also Teague v. Bakker, 35 F.3d 978, 985 n.5 (4th Cir. 1994) (“[J]udges are not like pigs, hunting for truffles buried in briefs.” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991))).
In his complaint, plaintiff seeks various forms of relief, including: the “[e]nforcement of . . . The Devine Constitution and By-Laws of the Moorish Science Temple of America . . .” ([DE-1] at 12); that “if any criminal charges be found” they be imposed upon defendants (id. at 13); and that compensatory and punitive damages be awarded in amounts ranging from $250,000 to $9,000,000, specified by defendant (id. at 14-18).
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (standard for frivolousness). A case is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of 6 a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Hill v. Se. Reg'l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D. N.C. Oct. 21, 2019), report and recommendation adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D. N.C. Dec. 20, 2019), aff'd, 818 Fed.Appx. 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here, the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
III. ANALYSIS OF PLAINTIFF'S COMPLAINT
Having granted plaintiff's application to proceed in forma pauperis, the court must now undertake the frivolity review of this case pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), a court shall dismiss a case if the action is: “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
1. Moorish Nation/Sovereign citizen arguments
Plaintiff's allegations appear to be based largely or exclusively on what are commonly called the “Moorish Nation” and broader “Sovereign Citizen” arguments. See Compl. [DE-1] at 13 (“I, Devon A. Gayles El 360°, demand this United States Federal court view this Petitioner (In my Proper Person) as a Moorish American National (Natural Born Citizen of the Land) and not as a (brand) Negro, Blackman (person), Colored, African American”). Plaintiff brought many of these same or similar claims before another court in this circuit, which dismissed them with prejudice. See, e.g., Cf. Gayles El v. State of N. Carolina Inc., No. 1:20-CV-00125-MR, 2020 WL 6050575, at *1-2 (W.D. N.C. Oct. 13, 2020) (dismissing Gayles-El's claims that the State of North Carolina and various named defendants (including Roy Cooper) “denationalized him by identifying him as a Black American citizen, and that his arrest, prosecution, conviction, and criminal appeals were invalid.”);
As noted by that court, “‘Moorish Nation' . . . arguments . . . have been universally rejected by the courts across this country, and . . . [a]ny claim, therefore, that [Gayles-El] is ‘not subject to the laws of North Carolina because of [his] alleged Moorish nationality' must be considered frivolous.” Id. at *2 (quoting El-Bey v. North Carolina, No. 5:11-CV-00423-FL, 2012 WL 368374, at *2 (E.D. N.C. Jan. 9, 2012)). Similarly, “[p]laintiff's attempts to obtain damages and 8 other relief for the alleged violation of his Moorish rights [including his demand that court view him as a Moorish American National] are, therefore, frivolous.” Id.; see also Cush-El v. State, No. 1:16CV176, 2016 WL 1212427, at *2 (M.D. N.C. Mar. 10, 2016), report and recommendation adopted, No. 1:16CV176, 2016 WL 1228626 (M.D. N.C. Mar. 28, 2016) (“Plaintiff's filings based on his Moorish descent or any other claimed ethnic or national status are frivolous. The Complaint should be dismissed accordingly.”).
Here, although somewhat difficult to follow, plaintiff appears to base his claim on the fact that Gov. Cooper and other defendants improperly disregarded a “Notice and Demand (Commercial Affidavit)” that plaintiff had sent to them, which requested “certified and verified official copies of [Gov. Cooper's] Delegation of Authority order to deprive a Moorish American National (A Muur) of his protected and secured Substantive Right to due process and equal protection.” Compl. [DE-1] at 8. Courts across the country have found meritless similar demands for public officials' documentation of delegations of authority. See Elliott-Bey v. Maryland, No. CCB-20-781, 2020 WL 2097638, at *1 (D. Md. May 1, 2020) (rejecting plaintiff's premise that the “the State's Attorney's office ‘failed to comply with a lawful command to submit their delegation of authority.'”) (citations omitted); Baalim v. United States, No. 4:19-CV-2569 AGF, 2020 WL 223929, at *3 (E.D. Mo. Jan. 15, 2020) (disregarding plaintiff's argument that a judge's failure to provide the proper documentation of the judge's delegation of authority papers freed the plaintiff from the court's authority); United States v. Rivera, No. CIV 14-0579 JB/CG, 2015 WL 4042197, at *22 (D.N.M. June 30, 2015) (finding meritless the claim that “the Commissioner of Internal Revenue and employees of the Internal Revenue Service have no power or authority to administer the Internal Revenue laws, . . .because of invalid or nonexistent delegations of authority, [and] lack of publication of delegations of authority in the Federal Register”).
Similarly, while certain filings by plaintiff purport to carry legal weight based on the issuing authority, such as various “Notice[s] of Default Judgment” ostensibly issued by the “Moorish American National Government”, the “Moorish National Republic,” the “Moorish Divine and National Movement of the World” or similar entities (see, e.g., [DEs 10-2; 13-1, -2, -3, -4]), this court does not recognize the authority of such entities. Accordingly, the court finds such notices to have no legal authority to compel the defendants to fulfill plaintiff's demands. See United States v. Morrison, No. CRIM. 07-0013-WS-B, 2013 WL 3974523, at *1 (S.D. Ala. Aug. 1, 2013) (noting that the plaintiff's “harassing ‘notices of default' and similar absurd documents transmitted to the U.S. Attorney's Office entitle him to no relief whatsoever.”); see also United States v. Sankey, No. 3:07-CR-83, 2016 WL 4253985, at *3 (E.D. Tenn. July 13, 2016), report and recommendation adopted, No. 3:07-CR-83, 2016 WL 4250317 (E.D. Tenn. Aug. 10, 2016) (finding defendant's “pro se Judicial Notice and Affidavit and Notice of Default . . . procedurally deficient and substantively meritless” to dismiss a petition and indictment).
Accordingly, plaintiff's claims regarding recognition of his Moorish Nation identity, related fictitious rights, objections to his incarceration, and purported failures of various officials to comply with his fictious legal demands must fail.
2. Deficient pleading of remaining claims
The remainder of plaintiff's complaint appears to consist of vague conspiracy theories combined with incoherent legal terminology and documentation, which are largely devoid of factual support. Any glimpses of concrete factual allegations hidden in the hundreds of pages of filings are so rare and disjointed, so as to preclude any meaningful review by this court. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (15 July 2016). Plaintiff's complaint exceeds the permissible bounds based on its deficient pleadings. Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Plaintiff's complaint does neither and should therefore be dismissed. See Fetherson v. Blackmon, No. CV 0:16-3189-JFA-PJG, 2017 WL 1365114, at *2 (D.S.C. 9 Feb. 2017) (recommending dismissing as frivolous claims against defendant that are “conclusory and lack supporting facts”), rep. & recomm. adopted, 2017 WL 1344616 (12 Apr. 2017); Cush-El v. State, No. 1:16CV176, 2016 WL 1212427, at *2 (M.D. N.C. 10 Mar. 2016) (recommending dismissal of complaint wherein “[p]laintiff recites claims that consist largely of incomprehensible ramblings composed of commercial and legal doctrines”), rep. & recomm. adopted, 2016 WL 1228626 (28 Mar. 2016); Padilla v. Priest, No. 1:13-CV-287, 2013 WL 12156670, at *2 (E.D. Va. 25 June 2013) (dismissing case as frivolous where complaint was “devoid of any facts to support Plaintiff's allegations” and “contains precisely the type of naked assertions of wrongdoing which are unsupported by any factual enhancement and therefore necessitates dismissal”), aff'd, 543 Fed.Appx. 353 (4th Cir. 2013).
Accordingly, the undersigned RECOMMENDS that the court DISMISS all of plaintiff's claims.
IV. CONCLUSION
For the reasons set forth above, (1) the undersigned RECOMMENDS that the court DIMISS plaintiff's complaint [DE-1] as frivolous and for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii); and (2), the court ORDERS 11 that plaintiff's tax documents [DE-17, -18] BE SEALED and DENIES plaintiff's request for discovery (Compl. [DE-1] at 8) as premature.
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until November 8, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).