United States District Court, W.D. Arkansas, Harrison Division
JAMES RICHARD ASBURY; and JAMES RICHARD ASBURY AS REPRESENTATIVE OF SAA, JJA, JDA, and ITA PLAINTIFFS
AJIT PAI, DIRECTOR OF THE FEDERAL COMMUNICATIONS COMMISSION; HILLARY RODHAM CLINTON; NATIONAL SECURITY AGENCY AGENTS; DEPARTMENT OF HUMAN SERVICES WORKERS; TUCKER, Fox Network Host; ADAM, Windstream Communications Installer; SUPERINTENDENT AND HIS WIFE, Berryville School District; JOHN, School Psychiatrist; FEDERAL COMMUNICATIONS COMMISSION; ESTHER MONTAROSA; JAMES, Afeliat School Psychiatrist; OB[AMA COMMUNICATION TEAM DEFENDANTS
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
James Richard Asbury has filed this civil rights action
pursuant to 42 U.S.C. § 1983. He proceeds pro
se and in forma pauperis ("IFP"). The
case is before the Court for pre-service screening pursuant
to the Prison Litigation Reform Act ("PLRA"). The
PLRA modified the IFP statute, 28 U.S.C. § 1915, to
require the Court to screen complaints for dismissal under
§ 1915(e)(2)(B). The Court must dismiss a complaint, or
any portion of it, if it contains claims that: (a) are
frivolous or malicious; (b) fail to state claims upon which
relief may be granted; or, (c) seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
Amended Complaint (Doc. 8) is verbose and difficult to
understand. Plaintiff alleges, among other things, the
following: Defendants, the Department of Human Services
("DHS"), Hillary Clinton, and the Superintendent
and psychiatrists (John and James) of the Berryville Schools,
knew Plaintiff and his children are Christian so they helped
DHS workers (who are Ku Klux Klan members) attack him by
forcing Jesus on him; Defendants mentally abused him,
slandered, and defamed him over the airways, and also used
the Federal Communications Commission ("FCC") for
insider trading; Defendants knew Esther Montarosa poisoned
the Plaintiff and his kids, forcing them to stay with her;
National Security Agency ("NSA") agents were placed
in every business in America to overthrow "America as
Ath[ei]st Devil worshipers [and] murderers for cocain[e]
drug cartels"; the Obama Communications team, the NSA,
and the Berryville schools "tampered with time on the
phone" to obstruct justice and hurt Plaintiffs family;
Plaintiff has suffered mental abuse, has been tortured, and
has been raped as Defendants worked with the NSA to keep him
from receiving help from any doctor; Defendants attempted to
murder his kids; Hillary Clinton ruined his political career
and "killed [Plaintiff and] angels brought [him]
back"; and the NSA poisoned Plaintiff and his children
to steal their sign-on bonuses.
also mentions a number of individuals and/or agencies that he
has not listed as Defendants. These individuals will not be
treated as named Defendants. It is clear Plaintiff understood
how to name additional Defendants as he added two full pages
of Defendants after the original four he listed in the area
provided in the § 1983 form complaint he utilized in
filing his Amended Complaint.
the PLRA, the Court is obligated to screen a case prior to
service of process being issued. A claim is frivolous when it
"lacks an arguable basis either in law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim fails to state a claim upon which relief may be granted
if it does not allege "enough facts to state a claim to
relief that is plausible on its face." BellAtl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
bears in mind, however, that when "evaluating whether a
pro se plaintiff has asserted sufficient facts to
state a claim, we hold 'a pro se complaint,
however inartfully pleaded, ... to less stringent standards
than formal pleadings drafted by lawyers.'"
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)
(quoting Erickson v. Pardus, 551 U.S. 89, 94
has asserted no plausible claims. First, to the extent he
attempts to sue federal agencies or officers of federal
agencies in their official capacities, the claims are subject
to dismissal. "Absent a waiver, sovereign immunity
shields the Federal Government and its agencies from
suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994).
This ruling applies to Plaintiffs claims against Ajit Pai,
the director of the FCC, the FCC, and the NSA.
any claims that state officials, Berryville school officials,
and federal government officials were conspiring against
Plaintiff and/or his children to deprive him of his
constitutional rights are outlandish in nature and described
in fantastic or delusional terms and are subject to
dismissal. 28 U.S.C. § 1915(e)(2); Neitzke v.
Williams, 490 U.S. 319, 325 (1989). This also applies to
his claims against Agents of the NSA, the DHS workers, the
Superintendent and psychiatrists (John and James) of the
Berryville Schools, the FCC and its director, Hillary Rodham
Clinton, and the Ob[a]ma Communication Team.
Plaintiffs claims against private individuals are subject to
dismissal, as private individuals do not act under color of
law for purposes of § 1983. Section 1983 provides a
federal cause of action for the deprivation, under color of
law, of a citizen's "rights, privileges, or
immunities secured by the Constitution and laws" of the
United States. In order to state a claim under 42 U.S.C.
§ 1983, a plaintiff must allege that the defendant acted
under color of state law and that he violated a right secured
by the Constitution. West v. Atkins, 487 U.S. 42
(1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th
general, private individuals do not act under color of state
law for purposes of § 1983. See Lugarv. Edmondson
Oil Co., Inc., 457 U.S. 922, 936 (1982). "[T]he
state-action requirement reflects judicial recognition of
that fact that most rights secured by the Constitution are
protected only against infringement by governments."
Id. (internal quotation marks and citation omitted).
An exception to the general rule is when a private individual
works in conspiracy with governmental actors. See, e.g.,
United States v. Price, 383 U.S. 787, 792 (1966).
However, as noted above, the conspiracy allegations are
outlandish, fanciful, and delusional. Thus, the private
Defendants are entitled to dismissal. This includes, Hillary
Rodham Clinton, Tucker (the Fox Network Host), Adam (the
Windstream Communications Installer), Esther Montarosa, and
the Ob[a]ma Communication Team.
the Eleventh Amendment bars suits in federal court against a
state by its own citizens. U.S. Const. Amend. 11; see
also Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
This immunity extends to state agencies. Florida Dept. of
Health & Rehabilitative Servs. v. Fla. Nursing Home
Assn., 450 U.S. 147 (1981). The Arkansas DHS is a state
agency. George v. Ark. Dept. of Human Servs., 195
S.W.3d 399, 402 (Ark. App. 2004). With respect to any
official capacity claims against the DHS and its workers, the
Eleventh Amendment bars any claims against them.
to the extent the Amended Complaint can be read as Plaintiff
expressing a desire to press criminal charges against various
Defendants, his claims are subject to dismissal. A private
citizen has no right to institute criminal prosecution.
See Diamond v. Charles,476 U.S. 54, 64-65 (1986);
in re Kaminski,960 F.2d 1062, 1064 (D.C. Cir. 1992)
(private party lacks judicially cognizable interest in
prosecution of ...