United States District Court, E.D. Pennsylvania
DERRICK J. ELLERBE
U.S. FEDERAL GOVERNEMNT OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES THE CITY OF PHILADELPHIA OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES
A. MCHUGH, J.
J. Ellerbe regularly files pro se civil cases in
this Court against government actors based on his belief that
he is the victim of a vast government conspiracy. See
Ellerbe v. U.S. Gov't, No. CIV.A. 14-5041, 2014 WL
4446128, at *1 (E.D. Pa. Sept. 8, 2014) ("The gist of
Mr. Ellerbe's '"Emergency" Criminal
Complaint' is that federal, state and local governmental
departments and agencies are engaged in a 'criminal
conspiracy' against him that is primarily being driven by
the United States Postal Service."). In the instant
civil action, Ellerbe sued "U.S. Federal Government
Officials, Officers, Agents and Employees, " and
"The City of Philadelphia Officials, Officers, Agents
and Employees, " apparently on the basis that he is the
victim of a conspiracy that violates the Racketeer Influenced
and Corrupt Organizations Act ("RICO"). He also
seeks leave to proceed in forma pauperis. The Court
will grant Ellerbe leave to proceed in forma
pauperis and dismiss his complaint.
alleges that between April 2, 2013 and October 4, 2013, he
was "kidnapped and held captive at four (4) different
Phila. County jails." (Compl. at 3.) He appears to be
contending that his incarceration was the product of RICO
violations and/or a RICO conspiracy. He also alleges that the
defendants are "blocking, delaying and/or
destroying" his legal mail, that "emails from a
Phila. library system are also blocked from the State General
Assembly and the U.S. Congress, " and that his telephone
calls are being redirected. (Id.) Ellerbe claims the
irreparable harm, physical violence, terroristic threats,
harassment, stalking, third party interference with
employment and independent contractor rights, civil rights
violations, civil liberties violations, U.S. Constitutional
violations (Federal and State which are ongoing and
continual), Pa. Constitutional violations, Federal and State
Statutory (criminal and civil) violations including Racketeer
Influenced and Corrupt Organizations Act and the Pennsylvania
Corrupt Organizations Act.
(Id. at 4.) He seeks damages, various declarations
(including a declaration that he is eligible for witness
protection) and unspecified injunctive relief.
STANDARD OF REVIEW
Court grants Ellerbe leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly,
28 U.S.C. § 1915(e)(2)(B)(i) and (ii) require the Court
to dismiss the complaint if it is frivolous or fails to state
a claim. 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). It is legally
baseless if "based on an indisputably meritless legal
theory, " Deutsch v. United States, 61 F.3d
1080, 1085 (3d Cir. 1995), and factually baseless "when
the facts alleged rise to the level of the irrational or the
wholly incredible." Denton v. Hernandez, 504
U.S. 25, 33 (1992). To survive dismissal for failure to state
a claim, the complaint must contain "sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). Conclusory
statements and naked assertions will not suffice.
Id. As Ellerbe is proceeding pro se, the
Court construes his allegations liberally. Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir.
complaint is factually frivolous. Several of his allegations
appear to be the byproduct of delusions or paranoia,
including his allegation that there is a vast government
conspiracy against him. Especially in light of his prior
filings in this district-including two other cases that
Ellerbe filed simultaneously with this case-the Court
concludes that Ellerbe's complaint is factually frivolous
because it is based on allegations that rise to the level of
irrational and incredible. See Ellerbe v. U.S. Gov't
Officers, Agents and Employees, Civ. A. No. 17-1474
(E.D. Pa.); Ellerbe v. The U.S. Att'y Gen., Civ.
A. No. 17-1473 (E.D. Pa.); see also Ellerbe, No.
CIV.A. 14-5041, 2014 WL 4446128, at *2 (dismissing complaint
as frivolous where "[t]he thrust of Mr. Ellerbe's
complaints is that every branch of government on the federal,
state, and local level are conspiring to harm him, torture
him, harass him, and deprive him of his constitutional
rights, " and listing other cases filed in this
district); see also Walton v. Walker, 364
F.App'x 256, 258 (7th Cir. 2010) ("[T]he district
court was entitled to draw upon its familiarity with
Walton's prior meritless litigation (again describing
sprawling conspiracies) to conclude that his complaint
consisted only of 'claims describing fantastic or
delusional scenarios, claims with which federal district
judges are all too familiar.'" (quoting
Neitzke, 490 U.S. at 328)).
Ellerbe has not stated a RICO claim. The federal civil RICO
statute provides that "[a]ny person injured in his
business or property by reason of a violation of section 1962
of this chapter[, which prohibits racketeering activity, ]
may sue therefor in any appropriate United States district
court" 18 U.S.C. § 1964(c). "[I]n construing
the federal RICO law, [the Third] Circuit has rejected the
argument that personal injuries qualify as RICO injuries to
'business or property.'" Williams v. BASF
Catalysts LLC, 765 F.3d 306, 323 (3d Cir. 2014) (citing
Maio v. Aetna, Inc., 221 F.3d 472, 492 (3d Cir.
2000)). Furthermore, RICO does not provide a cause of action
where the damages alleged are "speculative."
Maio v. Aetna, Inc., 221 F.3d 472, 495 (3d Cir.
2000) (speculative damages that were "predicated
exclusively on the possibility that future events
might occur" could not form the basis of a RICO injury).
in the complaint provides a plausible for concluding that
Ellerbe suffered a non-speculative injury to business or
property that would give him standing to raise a RICO
claim.In particular, Ellerbe cannot state a RICO
claim based injuries he sustained by virtue of his
imprisonment-including any lost employment
opportunities-because those injuries are not are not injuries
to "business or property" for purposes of
RICO. See, e.g., Etti ben-Issaschar v. ELI
Am. Friends of the Israel Ass'n for Child Prot,
Inc., No. CV 15-6441, 2016 WL 97682, at *3 (E.D. Pa.
Jan. 7, 2016) ("The type of harm suffered by [plaintiff]
for which she seeks to recover in this action-i.e., harm
related to her detention and the alleged abuse she suffered
while detained-is not an injury to 'business or
property' that is cognizable under the RICO laws.");
Clark v. Conahan, 737 F.Supp.2d 239, 255 (M.D. Pa.
2010) (observing that "[m]ental distress, emotional
distress, and harmed reputations do not constitute injury to
business or property sufficient to confer standing on a RICO
plaintiff and explaining that "injury for RICO purposes
requires proof of concrete financial loss, not mere injury to
an intangible property interest"). Ellerbe's failure
to allege an injury to business or property is also fatal to
his RICO conspiracy claims. Magnum v. Archdiocese of
Phila., 253 F.App'x 224, 229 (3d Cir. 2007) ("A
plaintiff alleging a civil RICO violation under
either § 1962(c) or (d) must plead a cognizable
injury to 'business or property' under §
in the event Ellerbe sought to raise claims under criminal
statutes or file criminal charges, there is no legal basis
for his claims. See Cent. Bank of Dover, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 190
(1994) ("We have been quite reluctant to infer a private
right of action from a criminal prohibition alone[.]");
Mikhail v. Kahn, 991 F.Supp.2d 596, 636 (E.D. Pa.
2014) ("[I]t is today beyond all reasonable doubt that
the prosecution of violations of federal criminal law in
federal court is a function of the federal government, not
private parties, and federal courts lack the power to direct
the filing of criminal charges[.]" (citations,
quotations, and alteration omitted)), aff'd, 572
F.App'x 68 (3d Cir. 2014) (per curiam). "Indeed, Mr.
Ellerbe has been repeatedly informed that he may not initiate
a criminal case by filing a lawsuit." Ellerbe,
No. CIV.A. 14-5041, 2014 WL 4446128, at *3 (E.D. Pa. Sept. 8,
2014) (citing cases).