Cobble v. Bennett

DANIEL COBBLE PLAINTIFF v. MICHAEL A. BENNETT DEFENDANT

Civil Action No. 3:21-CV-00021-RGJ

United States District Court, W.D. Kentucky, Louisville Division

August 20, 2021

MEMORANDUM OPINION AND ORDER

REBECCA GRADY JENNINGS, DISTRICT JUDGE.

This matter is before the Court on a Motion and an Amended Motion to Remand by Plaintiff Daniel Cobble (“Cobble”) pro se, [DE 5; DE 6], on a Motion to Dismiss by Defendant, Michael A. Bennett (“Bennett”) [DE 21], and on Motions for Relief against Repetitive and Vexatious Filings by Bennett [DE 22; DE 25]. Briefing is complete, and the matter is ripe. [DE 18; DE 19; DE 20; DE 23; DE 24]. For the reasons below, the Court DENIES Cobble's Motion and Amended Motion to Remand [DE 5; DE 6], GRANTS Bennett's Motion to Dismiss [DE 21], and GRANTS Bennett's Motions for Relief against Repetitive and Vexatious Filings [DE 22; DE 25].

I. BACKGROUND

Cobble's complaint arises out of his criminal indictment, conviction, sentencing, and order of restitution for pouring tar on the federal courthouse steps and in the federal courthouse entryway in Louisville, Kentucky on May 26, 2006-United States v. Daniel L. Cobble, Criminal Action No. 3:06-CR-93-TBR. At his sentencing in the federal criminal matter, Cobble opposed the imposition of restitution, arguing in part that the government lacked “territorial jurisdiction.” United States v. Cobble, Criminal Action No. 3:06-CR-93-TBR, DE 240. In June of 2007, the Court ordered Cobble to pay $15, 639.21 in restitution. Id. at DE 242. Cobble unsuccessfully moved to reconsider the order of restitution. Id. at DE 243; DE 245. In light of the restitution order, the United States Attorney's Office filed a federal criminal judgment lien in Jefferson County, Kentucky, in August of 2007. [DE 1-1 at 4]. The lien was made against Cobble's property pursuant to 18 U.S.C. § 3613(c), (d).

In December of 2020, Cobble filed this suit against the United States Attorney for the Western District of Kentucky, now Michael A. Bennett (“Bennett”), in Franklin Circuit Court seeking an injunction “for release of a falsified lien held by the U.S. Attorneys office in Louisville, Kentucky.” [DE 1-1 at ¶ 1]. Bennett timely removed this action to the Eastern District of Kentucky because the action was against a federal official. [DE 1 at ¶ 4]. Cobble moved to remand this case to state court. [DE 5; DE 6]. The Eastern District of Kentucky transferred this action to this Court because both parties reside in the Western District of Kentucky, the present matter is directly related to Cobble's federal case, and the property that is the subject of this action is situated in the Western District of Kentucky. [DE 7]. Once transferred, Cobble filed a Notice of Case Withdrawal in which he purported to voluntarily remand this case to the Franklin Circuit Court. [DE 16]. On April 6, 2021, the Court ordered Bennett to file a response to Cobble's motion and amended motion to remand and denied Cobble's attempt to voluntarily remand the case to state court in his Notice of Case Withdrawal. [DE 17]. In addition to filing his response to the motion and amended motion to remand, Bennett now moves to dismiss this action [DE 21] and for relief against repetitive and vexatious filings by Cobble [DE 22; DE 25]. The Court will address the parties' motions in turn.

II. MOTION TO REMAND

Bennett removed this action to the United States District Court pursuant to the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). [DE 1 at 2]. In response, Cobble filed a motion and an amended motion to remand. [DE 5; DE 6]. Cobble contends that removal from state court pursuant to § 1442(a)(1) was improper for the following reasons: (1) this Court lacks territorial jurisdiction because the federal courthouse where the underlying criminal conduct took place is in the state of Kentucky and the underlying criminal case is nonexistent in the record, (2) adverse rulings by other judges in the United States District Court on unrelated cases deprive this Court of jurisdiction over this current action, (3) the restitution lien prevents Cobble from getting a Veterans Administration (“VA”) loan, and (4) “the federal judge adjudicating the instant action (this case) has a material interest in not releasing the invalid lien because it would implicate the criminal acts of Magistrate Dave Whalin, Judge Thomas Russell, and others.” [DE 5, DE 6 at 2-5]. The Court rejects these arguments.

The federal-officer removal statute allows removal of actions against “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1); see also Mays v. City of Flint, Mich., 871 F.3d 437, 442 (6th Cir. 2017). The purpose of § 1442(a)(1) is to permit the removal of “those actions commenced in state court that expose a federal official to potential civil liability or criminal penalty for an act performed . . . under color of office.” Magnin v. Teledyne Cont'l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996) (internal citations omitted). “The statute reflects Congress' intent ‘to provide a federal forum for cases where federal officials must raise defenses arising from their official duties.'” Reed v. Monroe, No. C09-4026-MWB, 2009 WL 2176063, at *1 (N.D. Iowa July 21, 2009) (quoting Magnin, 91 F.3d at 1427). As such, “§ 1442(a)(1) is an exception to the well-pleaded complaint rule, which generally precludes removal where a federal question is not apparent within the four corners of the complaint.” Reed, 2009 WL 2176063 (citing Mesa v. California, 489 U.S. 121, 136-37 (1989)). Furthermore, this section is broadly construed in favor of removal. Arizona v. Manypenny, 451 U.S. 232, 242 (1981); In re Commonwealth's Motion to Appoint Counsel Against or Directed to Def. Ass'n of Philadelphia, 790 F.3d 457, 467 (3d Cir. 2015), as amended (June 16, 2015); Akers v. Flannigan, No. 21-2042-HLT, 2021 WL 2104976, at *1 (D. Kan. May 25, 2021).

Cobble's suit names the United States Attorney for the Western District of Kentucky as a defendant for the actions taken by himself, his predecessors, and/or his agents under color of federal office. Mesa, 489 U.S. 136-137. By virtue of the fact that Cobble sued the United States Attorney, Bennett was authorized to remove this case from state circuit court to federal district court pursuant to 28 U.S.C. § 1442(a)(1). See, e.g, Leitner v. United States, 725 F.Supp.2d 36, 39 (D.D.C. 2010) (removal of case against United States Attorney proper under § 1442(a)(1)); Leitner v. United States, 679 F.Supp.2d 37, 41 (D.D.C. 2010) (same); Reed, 2009 WL 2176063, at *1 (same). Accordingly, Cobble's motion and amended motion to remand [DE 5; DE 6] are DENIED.

III. MOTION TO DISMISS

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) instructs that a court must dismiss a complaint if the complaint “fail[s] to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). When considering a motion to dismiss, courts must presume all factual allegations in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citation omitted). “But the district court need not accept a bare assertion of legal conclusions.” Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citation omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).

To survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “A complaint will be dismissed . . . if no law supports the claims made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents an insurmountable bar to relief.” Southfield Educ. Ass'n v. Southfield Bd. Of Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561-64).

Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. Haines v Kerner, 404 U.S. 519, 519 (1972). Yet “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). For example, “the less stringent standard for pro se plaintiffs does not compel the courts to conjure up unpleaded facts to support conclusory allegations.” Leisure v. Hogan, 21 Fed.Appx. 277, 278 (6th Cir. 2001). Additionally, the Court cannot “create a claim which [the plaintiff] has not spelled out in his pleading.” Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). A pro se complaint must still contain either direct or inferential allegations about all material elements to sustain a recovery under some viable legal theory. See Leisure, 21 Fed.Appx. at 278. Ultimately, “[t]he Court's duty to construe a pro se complaint liberally does not absolve a plaintiff of the duty to comply with the ...