United States District Court, D. New Jersey
August 24, 2005.
PTAH HERU RA OSIRIS, et al., Plaintiff,
DEVON BROWN, et al., Defendants.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Plaintiffs, Ptah Heru Ra Osiris, Hiram Abiff, and Osiris Ptah,
currently confined at the South Woods State Prison ("SWSP") in
Bridgeton, New Jersey, seek to bring this action in forma
pauperis pursuant to 42 U.S.C. § 1983.*fn1 Based on Osiris
Ptah's affidavit of indigence and the absence of three qualifying
dismissals within 28 U.S.C. § 1915(g), the Court will grant Mr. Ptah's application to proceed in forma pauperis pursuant to
28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to
file the Complaint.
At this time, the Court must review the Complaint pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it should
be dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief.
For the reasons set forth below, the Court concludes that the
Complaint should be dismissed for failure to state a claim.
The Complaint alleges that the plaintiffs, members of the
Moorish nation or "Moorish Amexem", are political prisoners at
SWSP, and that the defendants do not have jurisdiction over them.
It appears that they seek their release from state custody based
on their Moorish heritage. They do not request damages.
II. STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or
seeks redress against a governmental employee or entity. The
Court is required to identify cognizable claims and to sua
sponte dismiss any claim that is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.*fn2
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff." Morse v.
Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The
Court need not, however, credit a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A complaint is frivolous if it "lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989) (interpreting the predecessor of § 1915(e)(2), the former
§ 1915(d)). The standard for evaluating whether a complaint is "frivolous" is an objective one. Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears "`beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981). However, where a complaint can be
remedied by an amendment, a district court may not dismiss the
complaint with prejudice, but must permit the amendment. Denton
v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker,
363 F.3d 229 (3d Cir. 2004) (complaint that satisfied notice pleading
requirement that it contain short, plain statement of the claim
but lacked sufficient detail to function as a guide to discovery
was not required to be dismissed for failure to state a claim;
district court should permit a curative amendment before
dismissing a complaint, unless an amendment would be futile or
inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103,
108 (3d Cir. 2002) (dismissal pursuant to
28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.
2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia
v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir.
1996). III. ANALYSIS
The "Complaint" is styled as a civil rights action in which the
plaintiffs allege that their incarceration violates national and
international treaties and constitutions. The Complaint does not
seek damages, but instead appears to seek release from state
custody on the grounds that the defendants do not have
jurisdiction over the Moorish Amexem. It appears that Ptah is a
convicted state prisoner.
Ptah essentially argues that he is immune from the laws of the
United States because he is a Moorish citizen. However, he is
unable to establish any basis for this claim. First, all citizens
of the United States are subject to American laws, and there is
no indication that Ptah is not a United States citizen other than
his claim that his nationality is Moorish Amexem.
Second, even if Ptah is a Moorish citizen, he is an alien under
United States law, and as an alien, he must obey the laws of the
United States.*fn3 While residing in the United States,
plaintiff has a duty to conform to the laws of this country.
Aliens residing in the United States do not differ materially
from native or naturalized U.S. citizens. See Leonard v.
Elay, 151 F.2d 409 (10th Cir. 1945); Khattab El I v. United States
Justice Dep't, 1988 WL 5117 at *2 (E.D. Pa. Jan. 22, 1988).
Third, Ptah alleges no facts to establish diplomatic immunity
from prosecution in the United States. Only designated
representatives such as diplomats and ministers recognized by the
U.S. Department of State are entitled to immunity from
prosecution under the Vienna Convention on Diplomatic Relations,
April 18, 1961, Art. IV, 23 U.S.T. 3227, and the corresponding
federal statute, 22 U.S.C. §§ 254a-254e. Ptah cannot unilaterally
assert diplomatic immunity. United States v. Lumumbra,
741 F.2d 12, 15 (2d Cir. 1984). Further, the United States has not
recognized the sovereignty of the Moorish Nation, thus precluding
sovereign immunity claims. Khattab El I, 1988 WL 5117 at *2.
Thus, the Complaint is devoid of allegations that would support
a federal civil rights claim. Finally, it should be noted that
Ptah is a convicted state prisoner. Accordingly, if by this
action Ptah attempts to challenge his state conviction, he must
first exhaust his state court remedies by direct appeal or other
available state court review, and then, if appropriate, file a
federal habeas application to assert any violations of federal
constitutional, statutory, or treaty law. Preiser v. Rodriguez,
411 U.S. 475 (1973). However, as the sole ground for relief is
the frivolous claim that Ptah is immune from the laws of this country because he is a member of the Moorish Nation, the
Complaint will be dismissed with prejudice. There is simply no
basis in law or fact for plaintiff's claim.
For the reasons set forth above, the Complaint must be
dismissed in its entirety with prejudice, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(i), (ii), and 1915A(b)(1). An appropriate order