IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

James A-K Arunga, :

Petitioner, :

v. : Case No. 2:12-cv-873

 : JUDGE PETER C. ECONOMUS

Mitt Romney, et al., Magistrate Judge Kemp

 :

 

Respondents. : 

REPORT AND RECOMMENDATION AND

 ORDER

Plaintiff, James A-K Arunga, a non-prisoner pro se litigant

who resides in California, has moved for leave to proceed in

forma pauperis. He qualifies financially for in forma pauperis

status, so his motion for leave to proceed (Doc. 1) is granted. 

However, for the reasons which follow, it will be recommended

that this action be dismissed.

I.

28 U.S.C. §1915(e)(2) provides that in proceedings in forma

pauperis, “[t]he court shall dismiss the case if ... (B) the

action ... is frivolous or malicious [or] fails to state a claim

on which relief can be granted....” The purpose of this section

is to prevent suits which are a waste of judicial resources and

which a paying litigant would not initiate because of the costs

involved. See Neitzke v. Williams, 490 U.S. 319 (1989). A

complaint may be dismissed as frivolous only when the plaintiff

fails to present a claim with an arguable or rational basis in

law or fact. See id. at 325. Claims which lack such a basis

include those for which the defendants are clearly entitled to

immunity and claims of infringement of a legal interest which

does not exist, see id. at 327-28, and “claims describing

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fantastic or delusional scenarios, claims with which federal

district judges are all too familiar.” Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992). A complaint may not be

dismissed for failure to state a claim upon which relief can be

granted if the complaint contains “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Pro se complaints are to be

construed liberally in favor of the pro se party. See Haines v.

Kerner, 404 U.S. 519 (1972). The Court is required to review Ms.

Carter’s complaint under these standards.

II.

Mr. Arunga has called his complaint a “Petition for a Writ

of Mandamus to the Respondents Against Their Outlawed Political

Ochlocracy.” The respondents he names are President Barack Obama

and former Massachusetts governor Mitt Romney. The complaint

invokes jurisdiction under the United States Constitution and 18

U.S.C. §§1956 and 1957, which criminalize money laundering. 

Among his complaints are the deleting of the phrase “In God We

Trust” from the Democratic National Committee Platform, which he

describes as “ochlocratic nihilism,” and the way in which

Governor Romney has, in Mr. Arunga’s view, avoided paying taxes. 

He asks that both candidates be “outlawed” and that the Court

order Robert Gates and David Petraeus be declared the legal

candidates for president and vice-president.

Ochlocracy is not a term in common use, at least in

documents filed with this Court, nor does it appear in the

Westlaw allfeds database for 2012. It means simply “mob rule.” 

The complaint appears to allege that either or both presidential

candidates intend to create such conditions and that the

Constitution forbids them.

Whatever the merits of Mr. Arunga’s constitutional views

about ochlocracy might be, his complaint fails to state a claim

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upon which this Court can grant relief. This Court is one of

limited powers (those vested in it by Article III of the

Constitution and by Act of Congress), and the subject matter of

Mr. Arunga’s complaint - that a presidential candidate is

threatening to create an unconstitutional form of government - is

simply beyond the reach of the Court’s limited powers. Some

questions, known as “political questions,” are properly reserved

to branches of the government other than the courts. As the

Supreme Court has explained, the “political question” doctrine

“is ‘essentially a function of the separation of powers,’ Baker

v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),

which recognizes the limits that Article III imposes upon courts

and accords appropriate respect to the other branches' exercise

of their own constitutional powers.” Zivotofsky ex rel.

Zivotofsky v. Clinton, 132 S.Ct. 1421, 1431 (2012)(Sotomayor, J.,

concurring). Among the factors which Baker v. Carr requires a

court to consider in deciding if a political question is present

are the lack of judicial standards for resolving the issue and

the impossibility of judicial resolution without policy

determinations committed to other branches of the government. 

Baker, 369 U.S. at 217. These factors are designed, in part, to

weed out cases which would require a court to act other than “in

the manner traditional for English and American courts.” Vieth

v. Jubelirer, 541 U.S. 267, 278 (2004)(plurality opinion). 

Intervention into the midst of a political campaign for the

purpose of disqualifying candidates based on an alleged threat to

impose unconstitutional mob rule if elected is not a traditional

function of the American courts. There is no established

judicial standard for what constitutes an ochlocracy, and

certainly none which applies to the alleged threat of

establishing such a government based on actions taken during the

course of a political campaign. Although the Court does have the

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power to determine if, for example, restrictions on contributions

to political campaigns or restrictions on the speech in which

candidates can engage are consistent with the Constitution, and

particularly the First Amendment, see, e.g., Citizens United v.

Federal Election Com'n, 558 U.S. 31 (2010); McIntyre v. Ohio

Elections Com'n, 514 U.S. 334 (1995), its power to supervise or

control political campaigns is fairly limited, and must depend on

the existence of a concrete and enforceable constitutional or

statutory provision susceptible of judicial interpretation and

application. That is especially so where, as here, the

constitutional provisions which Mr. Arunga cites do not appear to

have direct application to the actions about which he complains,

and much of his argument is based on the Preamble to the

Constitution, which does not create any legally enforceable

rights.

As another court has also observed, in dismissing a case

brought by this same plaintiff, “[t]he mere recitation ... of

various sections of the United States Constitution and random

United States Code citations is insufficient” to state a claim

upon which relief can be granted. Arunga v. American Civil

Liberties Union Foundation, 2009 WL 3274784, *1 (D. Or. Oct. 9,

2009), aff’d 441 Fed. Appx. 469 (9th Cir. July 1, 2011). That is

the situation here as well. This complaint simply presents no

justiciable issue which a court can resolve. Consequently, it

should be dismissed under 28 U.S.C. §1915(e)(2). 

 III.

For all of these reasons, it is recommended that this case 

be dismissed under 28 U.S.C. §1915(e)(2). Should the Court adopt

this Report and Recommendation, a copy of the petition and the

order of dismissal should be mailed to the respondents to the

extent that the Clerk can determine an address to which they can

be mailed.

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IV.

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

 

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