United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the court on Plaintiff Donald Joe
Barber's “Motion to Proceed in Forma
Pauperis.” (Doc. 2). The court WILL GRANT Mr.
Barber's motion, even though it is not submitted on the
form used by the court and does not contain all the
information required to evaluate his financial condition. But
doing so this time does not mean that this-or any other-judge
will accept an inadequate in forma pauperis
application next time.
making a determination of whether a plaintiff qualifies as a
pauper “[n]otwithstanding any filing fee, or any
portion thereof, that may have been paid, ” the court
must dismiss a case “if the court determines that . . .
the action . . . (i) is 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)(i)-(iii). Thus,
the court has an obligation to review sua sponte the
merits of in forma pauperis matters.
determining whether an in forma pauperis complaint
is frivolous, the court is not required to accept without
question the truth of the plaintiff's allegations.
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Instead, the court must view the allegations only as
“weighted in favor of the plaintiff.”
Id. at 32. Pursuant to § 1915(e)(2)(B)(i), the
court possesses “not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Neitzke v. Williams, 490 U.S. 319, 327 (1989);
see also Ghee v. Retailers Nat'l Bank, 271 F.
App'x. 858, 859 (11th Cir. 2008) (per curiam)
(stating that “an IFP action is frivolous, and thus not
brought in good faith, if it is without arguable merit either
in law or fact” and that the term “arguable means
capable of being convincingly argued” (internal
examined the Complaint, the motion, and the previous
Complaints that Mr. Barber filed in Case No. 16-CV-1321-MHH
and Case No. 11-CV-1581-MEF, as well as the Memorandum
Opinions and Orders filed in those cases, the court finds
that this case is due to be DISMISSED for the reasons stated
to be Dismissed for Lack of Jurisdiction
Barber brings this tax protest case against the Internal
Revenue Service, IRS officials, and the acting Assistant
Regional Commissioner of the Social Security Administration.
In many of the claims in this case, Mr. Barber seeks to
enforce criminal statues against the Defendants.
However, “[a] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973); see also Morales v. U.S. Dist.
Court, 580 F. App'x 881, 887 (11th Cir. 2014)
(per curiam) (finding that private citizen lacked
standing to petition for mandamus compelling presentation of
evidence to a special grand jury because the federal statute
on grand jury powers and duties did not create a private
right of action, and because “a private citizen's
interest in the . . . criminal prosecution of another person
is not a judicially cognizable interest for standing
purposes.”); Otero v. U.S. Attorney Gen., 832
F.2d 141 (11th Cir. 1987) (per curiam) (affirming
the dismissal of a citizen's petition for writ of
mandamus to compel prosecution of a former state attorney,
finding that “a private citizen has no judicially
cognizable interest in the prosecution . . . of
another.”). The right to prosecute anyone for criminal
conduct rests with the state and/or federal government, not
with a “private man, ” a “state
American national and noncombatant, ” a
“Citizen of the Republic
states” (doc. 1, at 1 & 3), or however
else a non-governmental private person or individual chooses
to describe himself. See, e.g., Diamond v. Charles,
476 U.S. 54, 65 (1986) (finding a lack of standing to address
a state statute when the state government itself was not part
of the appeal; “[b]ecause the State alone is entitled
to create a legal code, only the State has the kind of
‘direct stake' identified in Sierra Club v.
Morton, 405 U.S. [727, 740 (1972)] in defending the
standards embodied in that code.”). Consequently, Mr.
Barber does not have standing to bring criminal claims.
Mr. Barber lacks standing to bring criminal claims, this
court lacks jurisdiction over those particular claims.
See Lujan v. Defenders of Wildlife, 504 U.S. 555,
559-61 (1992). The court FINDS that the claims in the
following counts are due to be DISMISSED because Mr. Barber
is improperly seeking to enforce criminal statutes
against the Defendants: Count One, asserting that the
respondents have committed what he characterizes as the
crimes of “personage” and
“knowingly misrepresenting a living man or
woman”; Count Two, asserting the “crime of
barratry . . . of knowingly bringing false claims and charges
based on personage in order to use foreign statutory law
against living people”; Count Four, asserting that
“the respondents are guilty of inland piracy”;
Count Five, to the extent, if any, that he is alleging
criminal conversion: the count does not specify
whether he is alleging conversion as a tort or a crime; Count
Six, to the extent, if any, that he is alleging identity
theft as a crime: he asserts that “respondents are
guilty of identity theft by stealing the identity of the
petitioners . . . for the purpose of plundering the
petitioners”; Count Eight, asserting the crime of
theft; Count Fourteen, asserting the crime of peonage, and
violations of criminal statutes 18 U.S.C. §1581 and 42
U.S.C. §1994; Count Fifteen, asserting the crime of
“enticement into slavery” in violation of 18
U.S.C. §1583; Count Sixteen, asserting criminal
conspiracy in violation of 18 U.S.C. § 241; Count
Seventeen, asserting that the respondents are guilty of the
crimes of robbery and racketeering and extortion in violation
of 18 U.S.C. § 1951; Count Eighteen, asserting that the
respondents are guilty of the crime of deprivation of rights
under color of law, violating 18 U.S.C. § 242; and Count
Twenty-Three, to the extent, if any, that he is pursuing
criminal sanctions under the RICO Act.
this court FINDS that these claims are due to be DISMISSED
for lack of jurisdiction, it WILL DISMISS WITHOUT PREJUDICE
those claims, sua sponte. The dismissal without
prejudice is not an invitation to re-plead, because any
criminal claim brought by Mr. Barber would be futile. The
“without prejudice” merely acknowledges that,
because Mr. Barber lacks standing to bring those claims, this
court has no jurisdiction to enter a dismissal on the merits,
and thus, cannot enter a dismissal with prejudice. See
Stalley v. Orlando Reg'l Healthcare Sys., 524 F.3d
1229, 1232 (11th Cir. 2008) (“A dismissal for lack of
subject matter jurisdiction is not a judgment on the merits
and is entered without prejudice.”). Accordingly, the
court will not give Mr. Barber leave to amend his Complaint
alleging these criminal claims.
to be Dismissed on Other Grounds
Brought on behalf of “‘We the People' of the
court notes that Mr. Barber, a pro se litigant, who
is not an attorney licensed to practice law in Alabama or in
this court, purports to bring this suit on behalf of
“All of ‘We the People' of the republic
states.” (Doc. 1). Although, pursuant to 28 U.S.C.
§ 1654, a pro se plaintiff may “plead and
conduct” his own claims in federal court, that personal
right does not extend to representing the claims and
interests of others. See Timson v. Sampson, 518 F.3d
870, 873 (11th Cir. 2008) (holding individual could not bring
a qui tam suit as a pro se relator;
interpreting 28 U.S.C. § 1654 as providing a personal
right but not a right to represent others; and quoting with
approval Stoner v. Santa Clara Cty. Office of Educ.,
502 F.3d 1116, 1127 (9th Cir. 2007): “the established
procedure which required that only one licensed to practice
law may conduct proceedings in court for anyone other than
himself.”). The principle is well established that a
pro se plaintiff cannot represent others or bring
class claims. See, e.g., Lawrence v. Sec'y of
State, 467 F. App'x 523, 525 (7th Cir. 2012);
Blue v. Defense Logistics Agency, 181 F. App'x. 272,
275 (3rd Cir. 2006); Lescs v. Martinsburg Police
Dep't, 138 F. App'x. 562, 564 (4th Cir. 2005)
(per curiam); Fymbo v. State Farm Fire &
Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000); C.E.
Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir.
1987); see also Wallace v. Smith, 145 F. App'x.
300, 302 (11th Cir. 2005) (“[I]t is plain error to
permit [an] imprisoned litigant who is unassisted by counsel
to represent his fellow inmates in a class action.”)
(citation and internal quotation marks omitted); 1 Newberg on
Class Actions § 3:24 (“[M]ost courts have held
that pro se plaintiffs are inadequate representatives of a
maintain an action as a class action, litigants must meet the
requirement that “representative parties will fairly
and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a)(4). The ability to protect the interests
of the class depends, at least in part, on the quality of
legal counsel, and, except in rare cases, the competence of a
layman is “clearly too limited to allow him to risk the
rights of others.” Oxendine v. Williams, 509
F.2d 1405, 1407 (4th Cir. 1975) (citing as support two cases
from the former Fifth Circuit: Gonzales v. Cassidy,
474 F.2d 67 (5th Cir. 1973) and Anderson v. Moore,
372 F.2d 747, 751 n.5 (5th Cir. 1967)).
this court FINDS that all claims that Mr. Barber improperly
asserts on behalf of others are due ...