(PS) McGill El Bey v. Diaz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOBLE BERNISEARL MCGILL EL No. 2:19-cv-01958-MCE-CKD PS BEY, 12 Plaintiff, 13 ORDER v. 14 A. DIAZ, et al., 15 Defendants. 16 17 18 Plaintiff Noble BernisEarl McGill El Bey, who is proceeding without counsel in this 19 action, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.1 (ECF 20 No. 2.) Plaintiff’s application in support of his request to proceed in forma pauperis makes the 21 showing required by 28 U.S.C. § 1915. Accordingly, the court grants plaintiff’s request to 22 proceed in forma pauperis. 23 The determination that a plaintiff may proceed in forma pauperis does not complete the 24 required inquiry. Pursuant to 28 U.S.C. § 1915, the court is directed to dismiss the case at any 25 time if it determines that the allegation of poverty is untrue, or if the action is frivolous or 26 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21) and 28 U.S.C. § 28 636(b)(1). 1 an immune defendant. 2 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 4 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 5 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 6 490 U.S. at 327. 7 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 8 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 9 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 10 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 11 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 12 upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. 13 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 14 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 15 U.S. at 678. When considering whether a complaint states a claim upon which relief can be 16 granted, the court must accept the well-pled factual allegations as true, Erickson v. Pardus, 551 17 U.S. 89, 94 (2007), and construe the complaint in the light most favorable to the plaintiff, see 18 Papasan v. Allain, 478 U.S. 265, 283 (1986). 19 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 20 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear 21 that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma 22 pauperis is ordinarily entitled to notice and an opportunity to amend before dismissal. See Noll v. 23 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) superseded on other grounds by statute as stated in 24 Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000) (en banc); Franklin v. Murphy, 745 F.2d 1221, 25 1230 (9th Cir. 1984). 26 Here, plaintiff’s complaint is legally frivolous. As best the court can tell, plaintiff alleges 27 that on August 31, 2019, he was pulled over and issued a citation for having temporary paper 28 plates on his motorcycle. Plaintiff argues he is not required to have a California license plate 1 because he is an Indigenous Aboriginal Moor and California police do not have jurisdiction over 2 him. Plaintiff further alleges that on September 24, 2019, he went to the California Highway 3 Patrol to “verify [the] Aluminum Indigenous Plates on [his] Motorcycle,” which he claims he has 4 a right to display “according to The Rights of Indigenous People.” Plaintiff claims that the 5 Highway Patrol told him his plates were not valid in California. Plaintiff alleges these actions 6 were “clearly a Violation and Breach of Contract.” 7 Fatal to plaintiff’s complaint is the non-recognition of the Moorish Nation as a sovereign 8 state by the United States. See Ingram El v. Crail, 2019 WL 3860192, at *3 (E.D. Cal. Aug. 16, 9 2019) (“[T]he United States has not recognized the sovereignty of the Moorish Nation, thus 10 precluding sovereign immunity claims” (quoting Khattab El v. U.S. Justice Dep’t, 1988 WL 11 5117, at 5 (E.D. Pa. Jan. 22, 1988)); Benton–El v. Odom, 2007 WL 1812615, at *6 (M.D.Ga. 12 June 19, 2007); Osiris v. Brown, 2005 WL 2044904, at *2 (D.N.J. Aug.24, 2005); see also We 13 the People Beys and Els v. State of New York, 165 F.3d 16, 1998 WL 801875, at *1 (2d Cir. 14 Nov.12, 1998) (unpublished opinion). Plaintiff cannot unilaterally bestow sovereign immunity 15 upon himself. See United States v. Lumumba, 741 F.2d 12, 15 (2d Cir.1984). 16 Accordingly, plaintiff’s complaint does not allege sufficient facts from which the court 17 can draw a reasonable inference that plaintiff is entitled to relief.2 Indeed, plaintiff does not 18 identify a particular right or constitutional provision that was purportedly violated. Plaintiff 19 claims he was told he needed to have a valid California license plate, but those facts, without 20 more, do not amount to a constitutional or legally recognizable violation. For these reasons, 21 plaintiff’s complaint is subject to dismissal. 22 Nevertheless, in light of plaintiff’s pro se status, and because it is at least conceivable that 23 plaintiff could allege additional facts to potentially state a 42 U.S.C. § 1983 claim, the court finds 24 it appropriate to grant plaintiff an opportunity to amend his complaint. 25 If plaintiff elects to file an amended complaint, it shall be captioned “First Amended 26 2 For similar reasons it appears unlikely that diversity jurisdiction exists in this matter. Plaintiff 27 alleges diversity as the basis of jurisdiction, but the complaint lists a PO box in California as plaintiff’s address. On the jurisdiction form, however, plaintiff crosses out “state” and lists that 28 he is an “American National” and a “Tribal Member of the Cherokee Nation of Moors.” 1 | Complaint,” shall be typed or written in legible handwriting, shall address the deficiencies 2 | outlined in this order, and shall be filed within 28 days of this order. 3 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in order 4 | to make plaintiff's first amended complaint complete. Local Rule 220 requires that an amended 5 | complaint be complete in itself without reference to any prior pleading. As a general rule, an 6 || amended complaint supersedes the original complaint, and once the first amended complaint is 7 | filed, the original complaint no longer serves any function in the case. 8 Finally, nothing in this order requires plaintiff to file a first amended complaint. If 9 | plaintiff determines that he is unable to amend his complaint in compliance with the court’s order 10 | at this juncture, he may alternatively file a notice of voluntary dismissal of his claims without 11 | prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)G) within 28 days of this order. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is granted. 14 2. Plaintiff's complaint is dismissed, but with leave to amend. 15 3. Within 28 days of this order, plaintiff shall file either (a) a first amended complaint in 16 accordance with this order, or (b) a notice of voluntary dismissal of the action without 17 prejudice. 18 4. Failure to file either a first amended complaint or a notice of voluntary dismissal by 19 the required deadline may result in the imposition of sanctions, including potential 20 dismissal of the action with prejudice pursuant to Federal Rule of Civil Procedure 21 A1(b). 22 || Dated: November 13, 2019 bh rdf /f [ { gt 28 CAROLYN K DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 || 16.nobl.1958 27 28