Obama Citizenship

Stamper v. US: OH Federal Case Against McCain, Obama, Surrick Dismissed

By Phil

Gordon Allen Stamper of Richmond Heights, OH, on November 4, 2008 received a response as Plaintiff pro se in Stamper v. US, where he filed in US District Court against Defendants USA, Judge R. Barclay Surrick (the Philadelpha federal judge who was the first to hear Berg v. Obama), Barack Hussein Obama and John McCain, asserting the following:

He asserts this court’s jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361, “as well as under the United States Constitution, Bill of Rights, [and] First Amendment.”Mr. Stamper complains that defendant Surrick has failed his duty to uphold the Constitution, and defendants Obama and McCain are ineligible to run for President of the United States.

The entire Memorandum of Opinion and Order from District Judge James S. Gwin follows, including a certification from the judge that an appeal “from this decision could not be taken in good faith.”…

Only the Westlaw citation is currently available.
United States District Court, N.D. Ohio.
Gordon Allen STAMPER, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
No. 1:08 CV 2593.

Nov. 4, 2008.

Gordon Allen Stamper, Richmond Heights, OH, pro se.

MEMORANDUM OF OPINION AND ORDER

JAMES S. GWIN, District Judge.
*1 On November 3, 2008 pro se plaintiff Gordon Allen Stamper filed the
above-captioned action against the United States of America, R.
Barclay Surrick, Barack Hussein Obama, and John McCain. He asserts
this court’s jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361, “as
well as under the United States Constitution, Bill of Rights, [and]
First Amendment.”Mr. Stamper complains that defendant Surrick has
failed his duty to uphold the Constitution, and defendants Obama and
McCain are ineligible to run for President of the United States. In
his prayer for relief, Mr. Stamper seeks an order directing:

those official offices and employees of government that this Honorable
Court deems necessary to insure that Article II, Section 1, remains
protected to the fullest extent of the law, along with any other
broken laws. That Defendant Obama and Defendant McCain be required,
within 3 days, to present to this Court proof of their eligibility to
run for President of the United States. And such other relief as the
Court may deem proper and equitable.

(Compl. at 11.) For the reasons set forth below, this action is dismissed.

Relevant Facts

Mr. Stamper’s interest in this matter traces back to a complaint filed
this past summer in the United States District Court for the Eastern
District of Pennsylvania. The case, Berg v. Obama, et al., No.
2:08cv4083 (E.D.Pa. Aug. 21, 2008), filed by attorney Philip J. Berg
on his own behalf, alleged Senator Obama is not eligible to run for
the Office of President of the United States because he is not a
natural born citizen of the United States. Mr. Berg sought a Temporary
Restraining Order (TRO) prohibiting Senator Obama from running for
President, and enjoining the Democratic National Committee (DNC) from
selecting him as the nominee. He sought further that the court declare
Senator Obama ineligible to run for the Office of President under
Article II, Section 1 of the Constitution and permanently enjoin both
Senator Obama from running for President and the DNC from nominating
him for President. Following a hearing before the court on August 22,
2008, the Motion for TRO was denied.

On October 20 and 24, 2008, Mr. Stamper claims he attempted to
intervene in the Berg case by facsimile and United States mail. These
attempts were made to assure “that the United States Constitution was
being defended ‘to the fullest extent of the law.’ ” (Compl. at 6.) On
the same date Mr. Stamper allegedly filed an intervener motion, Judge
R. Barclay Surrick issued a Memorandum and Order granting the
defendants’ Motions to Dismiss. He asserts that this eliminated his
right to any other adequate remedy.

Agreeing that Judge Surrick properly determined that Philip Berg did
not have standing to assert any claim against Senator Obama, Mr.
Stamper now maintains that a writ of mandamus must issue to the United
States Attorney General. He believes this will provide that “a Grand
Jury be assembled, and that if such evidence be found and considered
sufficient, that the Government should then have a right standing
before a Court, and that such Court’s jurisdiction would only then be
found in order and without question.”(Compl. at 8.) Mr. Stamper
asserts that Senator Obama must be investigated in order for Article
II, Section 1″to be upheld, supported, and defended.”FN1(Compl. at 8.)

FN1. Mr. Stamper cites to a provision under Article II, Section, that
“No person except a natural born citizen, or a citizen of the United
States, at the time of the adoption of the Constitution, shall be
eligible to the office of President.”(Compl. at 4)(emphasis in
original.)

*2 Mr. Stamper claims Senator Obama has failed to voluntarily prove
his eligibility for President. Moreover, he accuses Senator Obama of
falsifying his State Bar Application in Illinois by claiming he never
used any name other than Barack Hussein Obama. Without describing to
what records he is referring, Mr. Stamper states “[r]ecords which have
become public knowledge … show Barack Hussein Obama was in fact AKA
Barry Soetoro, a citizen of Indonesia, enrolled in the Franciscan
Assisi Primary School in Jakarta, Indonesia with serial number 203,
sat in class 1B, and registered as a Muslim.”(Compl. at 9.) One basis
for this argument is Mr. Stamper’s assertion that Senator Obama’s
mother married “a certain Lolo Soetoro, moving to Indonesia,
expatriating both herself and her son, having thus caused by
’self-declaration on legal, public, educational records that Defendant
Obama was the step-son of Lolo Soetoro, now a citizen of
Indonesia.”(Compl. at 9.)

Mr. Stamper asserts that Senator Obama attempted to assuage public
concern regarding his citizenship by allegedly publishing “a falsified
registration of birth on the Internet.”(Compl. at 9)(emphasis in
original.) He claims that Judge Surrick missed these facts and
allegedly failed his duty to uphold the Constitution. Mr. Stamper’s
injury in this matter is Judge Surrick’s “lack of action, [which] …
will no doubt multiply the severity of the problem, as time for action
is rushing quickly to an end, and may have already passed us by.”
(Comp. at 10.)

Standard of Review

Although pro se pleadings are liberally construed, Boag v. MacDougall,
454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519,
520 (1972), a “district court may, at any time, sua sponte dismiss a
complaint for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules of Civil procedure when the allegations
of a complaint are totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit or no longer open to discussion.”  Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir.1999); see  Hagans v. Lavine, 415
U.S. 528, 536-37 (1974) (citing numerous Supreme Court cases for the
proposition that patently frivolous claims divest the district court
of jurisdiction); In re Bendectin Litig., 857 F.2d 290, 300 (6th
Cir.1988) (recognizing that federal question jurisdiction is divested
by obviously frivolous and unsubstantial claims).

Jurisdiction

Federal courts are always “under an independent obligation to examine
their own jurisdiction,”  FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231(1990) and a federal court may not entertain an action over
which it has no jurisdiction. See  Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). Beyond the
fact that Mr. Stamper has named the United States as a party
defendant, he has failed to otherwise establish this court’s
jurisdiction over his complaint.

Writ of Mandamus

*3 Under the relevant mandamus statute, it provides:

The district courts shall have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff.

28 U.S.C. § 1361. Jurisdiction under section 1361 is inextricably
bound with the merits of whether a writ of mandamus should issue; in
order to establish either jurisdiction or entitlement to the writ, a
court must first find that a duty is owed to the plaintiff. See
Vishnevsky v. United States, 581 F.2d 1249, 1253 n. 4 (7th Cir.1978).

In order for there to be a “duty owed to the plaintiff” within the
meaning of § 1361, there must be a “mandatory or ministerial
obligation. If the alleged duty is discretionary or directory, the
duty is not ‘owed.’ ” Short v. Murphy, 512 F.2d 374, 377 (6th
Cir.1975). A duty is not “owed” unless the obligation is ” ‘plainly
defined and peremptory.’ ” United States v. Battisti, 486 F.2d 961,
964 (6th Cir.1973) (quoting Albert v. United States Dist. Court, 283
F.2d 61, 62 (6th Cir.1960), cert. denied, 365 U.S. 828 (1961)).See
also  Martins Ferry Hosp. Ass’n v. NLRB, 654 F.2d 455, 456 (6th Cir.)
(per curiam), cert. denied, 454 U.S. 1083 (1981).

As a threshold matter, Mr. Stamper cannot mandamus the United States
per se. Hospoder v. United States, 209 F.2d 427, 429 (3d. Cir.1953).
Moreover, he has failed to allege Judge Surrick owed him any duty to
either grant a motion to intervene or issue a favorable ruling on
behalf of Philip Berg. There is no clearly defined “duty to act” which
Judge Surrick owes to the plaintiff. Furthermore, section 1361 is
available only to enforce a right and is not available to establish a
right; thus, when a plaintiff seeks to establish a right, the district
court has no jurisdiction under 28 U.S.C. § 1361. United States v.
Mellon, 32 F.2d 415 (1929).

Without an order issuing plaintiff’s requested writ of mandamus, Mr.
Stamper has failed to assert any other basis upon which this court can
exercise jurisdiction over his claims against Senators Obama and
McCain.FN2Mandamus cannot be used to compel the Attorney General or
the United States Attorney to conduct investigations or prosecute
alleged civil rights violations. Ryon v. O’Neill, 894 F.2d 199, 205,
n. 3 (6th Cir.1990)(citing Peek v.. Mitchell, 419 F.2d 575, 577 (6th
Cir.1970)). Because the defendants owe Mr. Stamper no mandatory duty
to investigate his complaint, see  Cok v. Cosentino, 876 F.2d 1, 2
(1st Cir.1989), it fails to state a claim for mandamus relief.

FN2. Very few facts address Senator McCain’s alleged failure to prove
his eligibility for President. Mr. Stamper merely asserts Senator
McCain has failed to prove that eligibility.

It is well settled that a federal court has no general jurisdiction to
issue writs of mandamus where that is the only relief sought. In the
absence of special statutory authority it can issue writs of mandamus
only as ancillary to and in aid of jurisdiction otherwise vested in
it. Haggard v. State of Tenn., 421 F.2d 1384,1386 (6th Cir.1970);
Hertz v. Record Publishing Co., 219 F.2d 397 (3d Cir.1955), cert.
denied, 349 U.S. 912 (1955). Without an independent basis for
jurisdiction, the court cannot address the merits of Mr. Stamper’s
complaint and the action must fail. Steel Co. v. Citizens for a Better
Environment, 523 U .S. 83, 94(1998)(”Without jurisdiction, court
cannot proceed at all in any cause; jurisdiction is power to declare
law, and when it ceases to exist, the only function remaining to court
is that of announcing the fact and dismissing cause.”) (citation
omitted)

Civil Rights

*4 Mr. Stamper’s generalized statement that his “injury is of concern
to the Constitution” is insufficient to otherwise establish the
jurisdiction of this court. District courts are not obligated to
conjure up questions never squarely presented to them or to construct
full blown claims from sentence fragments. Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir.1985). To do so would “require
… [the courts] to explore exhaustively all potential claims of a pro
se plaintiff, … [and] would … transform the district court from
its legitimate advisory role to the improper role of an advocate
seeking out the strongest arguments and most successful strategies for
a party.”  Id. at 1278.

Further, legal conclusions alone are not sufficient to present a valid
claim, and this court is not required to accept unwarranted factual
inferences. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th
Cir.1987); see  Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir.1971)
(A pleading will not be sufficient to state cause of action under
Civil Rights Act if its allegations are but conclusions).

Based on the foregoing, this action is dismissed. Further, the court
CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this
decision could not be taken in good faith.

IT IS SO ORDERED.

N.D.Ohio,2008.
Stamper v. U.S.
Slip Copy, 2008 WL 4838073 (N.D.Ohio)

END OF DOCUMENT

Full post as published by The Right Side of Life on January 27, 2009 (boomark / email).