No. _________________________
IN THE US SUPREME COURT
for this UNITED STATES OF AMERICA
“In Re James Frank Osterbur”
petitioner, pro se
www.justtalking3.info
{website a free speech/ freedom of the press initiative and right}
the petition called mandamus
a case determining both the foundation of
democratic authority as we the people:
as declared in constitutional law as
REDRESS OF GRIEVANCES
the petition called prohibition
A CASE determining the foundation of WE THE
PEOPLE, as it decides WHO has the power in this
question between:
money of a few/ versus the people and their
decision, their right to be informed, their right to
be protected by their government.
The petition called habeas corpus
The demand for judicial determination on the status
of personal jurisdiction: MY RIGHT to trial, MY
RIGHT as a pro se litigant. To use the language of a
common citizen, in the real world/ and expect the
judiciary to understand. Anything less is a corrupt
court!
Page 2 of 38
THE APPELLATE JURISDICTION
In these descriptions of “more than one courtroom”
of this state of IL and this nation called the United
States of America. The value and respect for
democracy, described as:
WE THE PEOPLE RULE OURSELVES BY
CONSTITUTIONAL LAW; the law we create
for ourselves.
Is tested and known by its truth within a
courtroom. Within this Supreme Court courtroom.
As your subservient “work sites/ courtrooms” have
failed in their duties: bringing the disease of
arrogance/ the power of failed justice/ and the
disgrace of disrespect for constitutional law by the
judiciary and discarding, justice upon us all. Is that
current truth.
The order of this district court: USING MONEY, to
deny access by establishing “only a lawyer”/
disputes and determines, who shall or shall not
represent a case for constitutional democracy: Sells
that democracy to the few/ democracy means:
together we are one, united for the sake of society.
Constitutional law denied by any means, establishes
so-called:
“justice belongs only to the rich”.
I DO seek to change that fact. By strict
adherence to CRITICAL FOUNDATION
PRINCIPLES OF DEMOCRACY.
Or, more simply: I demanding: of the court,
do, your job. As the law demands/ as your oath
Page 3 of 38
describes.. Redress is not discretionary/ it is the law.
A mandate upon the court and all its employees.
APPELLATE JURISDICTION 2
In this case, the critical foundation of democracy is
upheld by the plaintiff as OUR RIGHT to decide for
ourselves, in the matters and realities of society
that truly do affect our lives. We the people is
synonymous, with OUR RIGHT to vote upon the
most important issues of society in this our time.
That right is exercised with redress of grievances:
THE DEMAND to vote for myself/ rather than vote
on the laws that govern society by voting for
someone to vote for me. The element called money
has invaded the lives of a community in this case.
That money brings a very substantial increase in
noise, traffic, pollution/ decreasing property value
by turning a town into an industry site. And no
doubt bears heavily upon the reality of human
health and happiness for all concerned as there are
limits and standards in particular for noise, created
by the federal government: because damage is, or
can be done to the human ear. It can be
irreversible/ therefore all have the right to know, if
that standard for safety is being kept. Otherwise,
you gamble with our lives/ completely unfair.
The elemental charge is: that money shall NOT
decide/ DEMOCRACY by the ascension of
knowledge shall. The courtroom was then accessed
to provide that knowledge. The judiciary involved
discarded that and reestablished the case against
the elevator/ which was NEVER a defendant. That
is illegal seizure, not the performance of due
Page 4 of 38
process. 263 P 2d769,773. A prohibition upon the
judiciary refused. You have no right, to change my
plea, my lawsuit, or interpret as you desire. The
law decides/ not the judge.
APPELLATE JURISDICTION 3
The elemental determination of this trial is
governed by this decision: IS CONSTITUTIONAL
LAW/ IS DEMOCRACY/ IS THE FOUNDATION
OF LEGAL DUE PROCESS:
subject to procedural rules/ beyond what is
consistent with fair.
Because if it is: then the rule has exceeded the
constitution/ democracy has been invaded by
traitors/ and the foundation of legal right has been
given over to fools.
JUSTICE IS THE DEMAND OF EVERY PEOPLE.
Here too. Justice is not governed by rules/ but by
truth, and no greater truth exists in human society
than what is fair to all.
I have been imprisoned from my rights under the
constitution, and very specifically REDRESS OF
GRIEVANCES: in lawsuit after lawsuit by the
clear and certain ridicule of the judiciary: “their
words, frivolous, incoherent, delusional,
incomprehensible, rambling and mostly
unintelligible, and more”. Yet I have not lost a
single case by law. Only ridicule and innuendo.
YOUR JOB, IS TO CORRECT THAT and establish
we the people.
The courtroom has been imprisoned against me
(refused to me); by the judiciary and employees of
government with claims of sovereignty, claims of
immunity, and claims they need not be responsive
Page 5 of 38
to the law of this land as is redress of grievances.
They claim as employees to “be the government”/
whereas in democracy WE THE PEOPLE ARE
ASSURED: WE ARE THE GOVERNMENT
OURSELVES! Only one statement is true. Either
we the people are sovereign as owners of this nation/
thereby entitled to all that ownership grants: OR
the employees hired are found to be anarchists;
tearing down that democratic structure of authority
by we the people, thereby traitors. Because that
would not be democracy if we are ruled, by anyone
other than ourselves. There is no immunity for
that. There is no immunity claimed for the
judiciary in the constitution aside from “DURING
GOOD BEHAVIOR”. Which does translate into IF
there is bad behavior/ THEN the judge shall be
removed.
THE EXCEPTIONAL CIRCUMSTANCES
In this case defined by the simple assertion: does
money rule here/ OR do we the people. The answer
provides distinct and powerful possibilities of
democracy. As the preamble to the US constitution
does command of us all. Thereby prove that what
the constitution demands, shall not be the law.
Prove our democracy is real! Denied.
Order of the court 2023
also demands that 10-CV-2277 is in partnership
with this lawsuit. That lawsuit brought by me
sought the knowledge and truth: that terrorists are
GAMBLING WITH OUR LIVES/ OUR NATION/
AND EVERY FUTURE ON EARTH.
Consequently it is the job of our employees to
investigate what is so obviously errant and wrong
Page 6 of 38
(one claim established: we at NIF shall create an
explosion [energy burst] one thousand times greater
than all the electrical generating capacity of this
United States. Based upon theories and
assumptions; in a suburb of San Francisco). Being
wrong has true consequences, the failure of a single
laser, releases all that energy! And again (their
claim: we will try to recreate the single most
destructive event in the history of the universe/ the
BIG Bang, wherein all mass disintegrates, including
planets). And again: we will be gods/ we will
change nature by our own design. Nature is the
genetic structure of biology, there is nothing more
insane, than to risk everything, for every life/ for all
time. This lawsuit: LET THE PEOPLE DECIDE
FOR THEMSELVES. Its their life/ their child/
their future/ their everything. None have a right to
take it all away.
Denied.
In the report and recommendation of judge
Bernthal, lawsuits 10-2257 returns to this trial as a
lawsuit by me demanding accountability in
government/ LET US ALL KNOW THE TRUTH/
and nothing but the truth: Regarding what our
employees have done in money for the nation and
more. Where did it really go. Which is now US
SUPREME CT case 11-100
lawsuit 10-2055 by me returns to this trial as a
demand made upon the district court to enforce
state of IL law. Enforce the fifth, written
guaranteed constitutional right of the state of IL
called redress of grievances. Denied.
Lawsuit 11-2111 by me, returns to this trial as a
demand for contractual duties MUST BE
PERFORMED; before payment is due. In the
Page 7 of 38
matter of taxes/ it is then absolutely clear that every
constitutional guaranteed inherent and protected
right to each and every citizen SHALL be honored
in full/ OR no payment is due. That includes taxes,
because you the employee, ARE NOT the
government. Rather our constitution and
foundation documents as agreed ARE, “OUR
GOVERNMENT” by law. You the employee have a
job to do: the critical question being. DO YOU OWE
ME REDRESS OF GRIEVANCES BY LAW/ or do
you not. Prove the truth. Because if owed, then
entitled to receive/ or legally entitled NOT to pay
the tax, because YOU failed to uphold the contract
that is identified by sworn oath/ and amendments
directing our employees of government what they
MUST do, for all the people.
Denied.
COURT OF LAST RESORT
I am removed from participating further in the
champaign county courtroom of this state called
ILLINOIS and this US district as identified in the
order 11-2023
that order removes this trial, and returns it to the
state court/ where they are certain to follow the
guidelines of the report and recommendation IV
pages 6-8. Providing a step by step return to the
processing of service by rules that seek to control
justice rather than provide fair play. That is
tyranny. Those issues were removed in Peoria
district court/ when they failed, it was moved to
Urbana.
From plaintiff filing dated 2/ 28/11 this case:
Page 8 of 38
PLAINTIFF RESPONDS TO MOTION TO
DISMISS FOR LACK OF PERSONAL
JURISDICTION. An excerpt:
I do swear: no intent exists to fail to provide all
information to every defendant or the court as is
necessary and known. My web address where each
filing is exhibited has been sent to you; thereby
allowing each one to search for themselves and
PLEASE DO, inform me if something is amiss in any
mailing. It is NOT intended. Remembering I sent
you a note asking “please advise” because some of
your legal addresses are wrong how should I proceed:
and received no reply. Nobody is perfect/ including
the postoffice: I have now, emboldened the text to
insure nobody is left out. I cannot tell you why you
failed to receive the notification due each one/ I do
not know, apart from the fact it was unintentional.
And the problem will be fixed as soon as possible:
kindly instruct.
As is consistent with a pro se litigant, each and every
minimal rule of the court shall not be kept/ because
the courtroom has been designed for lawyers to
control. NOT people to find their justice in the law.
That fact is again identified in the footnote 1: being
true that whosoever is in charge of traffic safety, IS
intended to be the recipient of a summons. That fact
is known to the court/ and it is the court who
obstructs justice if the necessary information
regarding state run agencies is not produced.
Footnote 2 page 2 identifies the assertion that justice
is irrelevant when confronted by rules. I ,
TOTALLY DISAGREE, and demand the clear
constitutional standing upon which you declare this
is acceptable in your job to present justice to this
people. While there must be an acceptance of duty on
Page 9 of 38
the part of any pro se litigant. THERE IS a duty
inside the courtroom and other agencies of the state
or nation as it regards simple constructions of
justice. Such as the proper names, addresses,
summons, and means to attain DUE PROCESS as is
promised to each and every citizen. WHERE is my
due process, if justice is condemned by a rule: have I
not sworn to do what is necessary if you
provide the correct information directly to me.
Send what is lacking/ and be very clear about
what you want. They refused.
The US district court/ the US appellate court/
the state of IL circuit courts/ the state of IL
appellate court/ and the state of IL supreme court
have all been intertwined in this demand for
redress/ for justice/ for democracy/ and for
protection of the people. All failed to accept
their duty to obey constitutional law, and assert
democracy as is called WE THE PEOPLE. That
leaves only the US SUPREME COURT; as you are,
their superior. 2023 “the court is now left in the
uncomfortable position of being asked to analyze
Illinois procedural rules in a case between the state
of ILLINOIS and a citizen of IL. (HE refuses). This
in a case demanding that the guarantees of the IL
constitution as is legal redress/ MUST be adhered to
by the state. MUST BE ENFORCED BY THE
FEDERAL COURTS, as is the guarantee of article 3
US constitution. Denied.
Other realities of the courtroom are
highlighted in the originating writ REQUIRED
because there was no other way to get the report
and recommendation or order of the court for the
purposes of an appeal OTHER THAN to threaten
the US supreme court. US supreme court case 11-
Page 10 of 38
100 was exactly the same way: they refused to
deliver the report and recommendation plus order
until the US supreme court was brought into the
picture as a threat. Fundamentally proving: they
have no honor, with regard to me.
Parties to the proceeding
THE UNITED STATES OF AMERICA: the
guarantors of our constitution, our democracy, our
state rights, & our ownership as WE THE PEOPLE.
These are, “The principles of this case”
guaranteeing to the citizens of each state: that the
state SHALL uphold and provide its constitutional
guarantees to each of their citizens. Protect the
constitution both state & nation: They have refused.
FOR THE USA: THE SOLICITOR GENERAL
ROOM 5614, Department of Justice, 950
Pennsylvania ave, NW Washington DC 20530-
0001
The originating defendants:
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
box 19281 Springfield IL 62794-9276
IL DEPT OF AGRICULTURE OVERSIGHT AND
ENFORCEMENT.
Box 19281 Springfield IL 62794-9281
Environmental protection agency for the USA,
Chicago office IL:
US EPA region 5 Ralph Metcalfe Federal building
77 W. Jefferson blvd Chicago IL 60604
Department of OSHA for this USA. Chicago area
701 Lee st. Suite 950 Des Plaines IL 60016
Department of traffic safety for IL
box 19245 Springfield IL 62794-9245
Department of human rights; 100 W. Randolph st.
Page 11 of 38
Chicago IL 60601-3218
added is
US ATTORNEY Gerard A. Brost 211 Fulton st.
Suite 400, Peoria IL 61602
STATES ATTORNEY office Champaign county 101
E. Main st. Champaign IL 61801
IL ATTORNEY GENERAL 500 S. Second st.
Springfield IL 62706
champaign county circuit clerk 101 E. Main st
Urbana IL 61801
added as lawyers for the defense was:
IGNACIA S. MORENO Lawyer for epa requesting
electronic filing from court/ no address to me.
AMY J. DONA Lawyer for US dept of justice/
environmental and natural resources division/
environmental defense section box 23986
Washington DC 20026-3986
TABLE OF CONTENTS
THE APPELLATE JURISDICTION 2-3
APPELLATE JURISDICTION 2 3-4
APPELLATE JURISDICTION 3 4-5
THE EXCEPTIONAL CIRCUMSTANCES 5-7
COURT OF LAST RESORT 7-10
TABLE OF CONTENTS 11-12
JUDGMENT: U.S. DISTRICT COURT
Page 12 of 38
CENTRAL DISTRICT OF ILLINOIS/
located Urbana IL
CHIEF JUSTICE MICHAEL P. McCuskey
CASE 2:11-cv-02023-MPM-DGB #22 12-13
Plaintiff replies 13
Legal theory 13-14
Fundamental constitutional assertions 15
amplification of the reason 15-17
THE DEMAND FOR RELIEF IS: 17-20
the order 2023 20-22
the truth of case 11-cv-2023 22-24
from supplement to brief 1/4/ 11 trial 10-mr-906 24-26
from the amended compliant 10-MR-906
DATED 1/7/10 26-27
APPENDIX report and recommendation
judge David G. Bernthal 28
We now begin with the judgment of the court US
DISTRICT COURT/ CENTRAL DISTRICT OF
ILLINOIS/ located Urbana IL
CASE 2:11-cv-02023-MPM-DGB #22
James Frank Osterbur plaintiff
vs.
IL ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF OSHA, USA
IL DEPT OF AGRICULTURE
US EPA
IL DEPT OF TRAFFIC SAFETY
IL DEPT OF HUMAN RIGHTS
Page 13 of 38
defendants.
JUDGMENT IN A CIVIL CASE
“Decision by the court. This action came to
trial or hearing before the court. The issues have
been tried or heard and a decision has been
rendered.”
“It is ordered and adjudged that the
Defendants Motion to dismiss for Lack of Personal
Jurisdiction [7] filed by the Illinois Defendants is
moot and the case is remanded back to the Circuit
Court of Champaign county. This case is
terminated.
Dated: September 26, 2011
Judge: Michael P. McCuskey/ Chief US
district judge.
Plaintiff replies
Within the confines of federal law/ the judge fails entirely,
supports no reference to law; and uses ridicule to remove the
case involving a corporation, whose headquarters are located
in the state of Indiana/ and whose operational site is located
in Illinois. Makes this a potential federal case/ which means
the knowledge and evidence collected: MUST be useable in
federal court. The standards relied upon are federal in
nature/ making those who control the authority and the
courtroom: the ones who must participate in the collection
of evidence. OSHA agrees 1/ 26/ 2011, Barry Solerno /
assistant area director: and is then told to stand down My
reliance on Article 3 of the US constitution: “Between a
state, or the citizens thereof”: establishes legal right.
Page 14 of 38
Thereby the judge’s order is moot.
Legal theory
The fact of elevator involvement although NOT a current
part of trial, does cause the surrounding area not the elevator
itself to be involved in this dispute. As it is not the elevator
property, but the consequences to the community that are to
be resolved here. All the evidence collection is about the
elevator; to be a distinct part of trial, discovering the
boundaries between what money can do to the people/ OR
WHAT PEOPLE can legally do, in regards to the impact
that money has brought into their lives. Particularly through
redress of grievances, the issue itself is brought into the state
or federal realm/ as this affects all citizens: WE NEED TO
KNOW, the standards and the legal boundaries of
democratic influence and liberty versus individual freedom.
Not a game, the demand is: to legally identify exactly what
is fair to all, in these situations. So that we the people can
then vote for ourselves, and establish our authority as a
democracy over society/ but under constitutional law.
Secondly; the fundamental process involved here is
constitutional law; to protect, serve, and obey the
constitution; OUR DECISION TO BE A
DEMOCRACY, AND HIRE EMPLOYEES, RATHER
THAN ALLOW RULERS TO INVADE OUR LIVES.
Which literally does mean: NO EMPLOYEE can rule/ we
rule ourselves, by law! The first amendment REDRESS OF
GRIEVANCES as applied and is declared to be a legally
guaranteed right of all citizens in this state by its own
constitution 5th declaration of guarantee. And the US
constitution first amendment: what our employees owe us,
as our undeniable right, to democracy itself. Instead of
law or legal defense or sworn oath: as found in these
lawsuits, there is only, denial of this right/ games and
innuendo/ trickery and corruption. The court uses ridicule
and excludes me from the courtroom; from participating in
my own democracy as a citizen of both state and nation: that
Page 15 of 38
is illegal. The circuit court not even by trial/ they terminated
the case; and then demanded my return.
Thirdly; the foundation complaint is about the
protection of a community from those whose assault upon
my life/ “their lives” does have consequences. I AM AN
EXPERT; on the effects and consequences of excessive long
term noise on the human existence. I DO have tinnitus/
extending from excessive long term noise: therefore I
KNOW, the damage it can do on any human life. IT IS, or
can be HARSH; even causing suicide [never in me, but
many]. Not a game; 153 S.E. 2d 356, 359! The further
effect of substantially increasing traffic; functionally turning
this small town into an industrial zone; extensive large
equipment crossing the path of school children 438 P. 2d
477, 482. Alters the town. Instead of a community business
(which I support): issues of health and happiness are taken
away, that has consequences as well, in myriad ways.
Fundamental constitutional assertions
The critical relationship we the people do hold with
our government as a democracy is: according to the
preamble of the US constitution. “The following”.
“WE the people of the United States, in order to
form a more perfect union, establish justice, insure
domestic tranquillity, provide for the common defense,
promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity, do ordain and
establish this Constitution for the United States of
America.”
amplification of the reason
The right: to access and determine knowledge, as to
the validity of WHO has the greater right/ who has the
greater jurisdiction to protect and defend themselves as a
Page 16 of 38
community/ OR demand whatever the money wants shall
win. Is fundamental to this quest for democratic authority:
where does the boundary between freedom and liberty exist/
law proves liberty, but freedom is present in everything we
do.. We the people, RULE OURSELVES: BY LAW.
The liberty to decide as a people united, what is fair for
everyone!
Therefrom the duty presented to this court for
extraordinary writ examines the appellate duties of the US
SUPREME court and its oversight upon the judicial system
of America. As we see in both the state of IL and the federal
system of courts, an absolute denial of constitutional law,
called redress. And a foundation of ridicule instead of law,
by the judiciary in their consistent failures of due process. I
am forced from courts by rules NOT justice/ I am denied
legitimacy to stand and defend my life, my community, my
nation, my future, and my world; because of meritless
procedural dribble and stupidity/ FORCING JUSTICE from
the law and this land.
I am forced from my home, the place 3 generations
have grown for the harvest season; due to excessive noise
237 U.S. 309. OTHERS are subjected to an environment
beyond their control, a pollution forced upon them. They do
have a right to determine the precise nature of how they will
be affected before damage is done 397 U.S. 254 262-263.
If that is what they choose. But more important than that is
the right to be informed of the damage being done prior to
even the possibility of grave consequences. The
constitutional rights granted to me, and to us as a society:
RELIES upon redress of grievances to establish our
ownership as a democracy that then is the fundamental
which shall decide what is fair: my life/ my decision. Our
lives/ therefore our decision; but with the future involved
and declared equal! That is the demand of this trial.
To understand the effects, limit the damage, refine
the boundary between money and democracy, participate in
Page 17 of 38
that democracy through the courtroom, and adhere to
constitutional law 341 U.S. 123, 162-163
YOUR courtrooms have failed in these matters!
THE DEMAND FOR RELIEF IS:
LET THE CONSTITUTION DECIDE, do you owe
each citizen their right to redress of grievances? Yes or
no!
Let the judiciary understand: THE LAW is our
democracy, our authority/ NOT you. You, are the
employee! Your job, is to provide JUSTICE, by the
democratic principles we have agreed to within our
constitutions, and foundation documents which bind this
people together; as both state and nation. Your job is to
define the boundaries that then protect us all, with
knowledge and understanding, by the best evidence and
nothing but the truth. So that we the people shall then decide
what we choose for ourselves, as democracy in action.
as is redress. for WE the people.
Because redress is a foundation law, in both state
and nation/ and has NEVER been tried successfully
within the courtrooms of state or nation. THE DEMAND
it is a judicial conspiracy to deny redress: does erupt.
Therefore it is the US supreme court which must prove
REDRESS either exists for this people, both state and
nation/ OR it does not. Your job/ your oversight, failed
numerous times both state and nation. is in question. The
element called “good behavior” to be decided; “with
consequences” ; let the people decide.
LET THE PEOPLE UNDERSTAND: that
democracy does not intimidate the citizen, but empowers
them all to participate in their government/ their
situation in life and society; by asserting
Page 18 of 38
NO GAMBLING WITH OUR LIVES/ NO
overwhelming our lives with the power of money/ NO
power is greater than the constitutional law/ and NO
employee holds the title of “government/ immune from
justice/ or sovereign (above the people themselves
united)”. They are contracted to do a job/ the failure to
do that job, or the failure to honor that purpose, or
provide legitimate responses: ALL CARRY
PENALTIES FOR THE EMPLOYEE.
LET THE PRINCIPLE, the plaintiff pro se: be
proven Rambling and mostly unintelligible filings/ naked
assertions...in unspecified way/ deemed frivolous. Cannot
show he is plausibly entitled to relief. As is claimed by athe
judiciary in the “order of the courts”.
Demanding again EXPLAIN:
What is not common in terms of a pro se complaint
“well-pleaded, with reasonable inferences in the plaintiff’s
favor”. Therefore a judge must act. Or, What is not
understandable to the common public school teenager? If a
child (young adult) can understand/ then so must the court.
Section 15 page 10 of the report and
recommendation of judge David G. Bernthal:
{15. The court states page 3 “the court must treat
all well-pleaded allegations in the complaint as true, and
draw all reasonable inferences in the plaintiff’s favor”.
(#19) page 2 “plaintiffs claim is summarized in the
following excerpt from his complaint”. The judge uses this
to infer “failing to provide a short and plain statement of the
claim showing the pleader is entitled to relief”. The
grounds, requiring the court to intervene: as portrayed by a
“common pro se litigant” are very clear.
“Establish the intent of the preamble to our US
constitution; and sustain our right as we the people to do
what that law, gives us the authority to do: demands over,
Page 19 of 38
our employees, as a democracy requires, is our
responsibility: as is found in these words.
“WE the people of the United States, in order to form a
more perfect union, establish justice, insure domestic
tranquillity, provide for the common defense, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this
Constitution for the United States of America.”
I return the court to its own decision to use as “its
chosen summary from my complaint”: page 2. Report and
recommendation. “Quote:.... “merit-less litigation, to
conclude that a complaint consists only of naked assertions
and delusional scenarios......frivolous. From the plaintiff,
The writing starting with;
“Not a claim for money from me. Rather it is a
demand upon government officials to do your job, which is
to protect all our lives from injury, protect us from
infraction of the law that harms without cause/ or
subsequently takes away our freedom and our right to
decide for our own lives: thereby damaging our property or
ability to remain in our own homes. This is an
unreasonable seizure of our environment trespassing and
causing in effect “an enemy soldier to be quartered in my
house/ without my consent; for sustained period of time.
MORE SIMPLE: keep this corporation from dramatically
affecting our lives, by demanding they stay on their side of
the line. Don’t trespass over here/ not, past “the legal limit
or this standard”. Is that not, “what the law means”; ends
it.
The judge is asked, explain what is not well pleaded
here, by a common pro se litigant? What cannot be
understood as a need for legal remedy? Or what is abstract,
being specific/ as was I in defining the reality of tinnitus that
does affect, and substantially disables my life, and can afflict
Page 20 of 38
any or all others dependent upon the impact of noise. As is
consistent with a need to know, for this community.}
In pro se law, the necessity to describe statutory or
regulatory law falls short of justice/ as pro se means: NOT
educated in legal innuendo and trivia. The assertion of this
need, fails WE THE PEOPLE/ as it denies access to the
court: UNLESS a legal assistant (for free) is provided in all
constitutional or democratic authority issues as the public
demands: with public media attention being provided by the
court. You failed/ we the people, and our democracy. Are
we less than a criminal; and their right to a lawyer/ whether
they can afford one or not. Indeed we are/ to throw
murderers from the court due to an infraction of the
procedural rules is akin to tyranny: THE JUDICIARY IS
NOT THE LAW/ therefore they cannot act as if they are the
law, presenting rules that impede or deny the law as we the
people believe and demand IS JUSTICE, EQUALITY,
AND FAIR PLAY. Not your rules to govern us/ OUR laws.
The judges’ conclusion “merit-less litigation, to
conclude that a complaint consists only of naked assertions
and delusional scenarios......frivolous. Is in short plaintiff’s
complaint fails to give fair notice of the claim or the grounds
upon which it rests”. But the facts show, that the judiciary
assumed and interpreted, rather than accepted the facts of the
case which are: the presentation of a need for clear and
certain standards and measurements to be found, for the
protection of the people in this place. You set the standards/
therefore you take the measurements to defend this
democracy as we the people, rule ourselves by law.
Examining the order
ORDER 11-cv-2023
On September 14, 2011, Magistrate judge David G.
Bernthal filed a report and recommendation (#19) in this
Page 21 of 38
case. Judge Bernthal recommended that Defendant’s motion
to dismiss the federal defendants as party defendants (#10 be
granted. Judge Bernthal further recommended that
defendants motion to dismiss for lack of personal
jurisdiction (#7) filed by the Illinois defendants be deemed
moot and that the case be remanded to state court for further
proceedings. On September 20, 2011, plaintiff filled a pro
se Objection (#20) to the report and recommendation.[1]
________________
1 this court notes that in case no. 10-cv-2277, this court entered
an order and enjoined Plaintiff from “filing any further lawsuits, motions
or pleadings in the United States District court, central district of Illinois,
all divisions (other than habeas corpus petitions and criminal cases in
which he is a party defendant) unless those lawsuits, pleadings and
motions are filed through counsel (Emphasis in original).” This court
ordered that the clearks in all divisions of the central district of Illinois
are directed to return unfiled any papers that plaintiff attempts to file that
do not comply with this order. However, because this case was filed by
the pro se plaintiff prior to the entry of this courts order in case no. 10-
cv-2277, this court has considered plaintiff’s pro se objections to the
report and recommendation.
__________________
This court has carefully reviewed judge Bernthal’s
report and recommendation (#19) and plaintiff’s pro se
objection(#20). This court notes, as it has in previous cases
filed by the pro se plaintiff, that this review has been
complicated by plaintiff’s rambling and most unintelligible
filings with this court. Following this court’s careful and
thorough de novo review, this court agrees with and accepts
judge Bernthal’s report and recommendation. This court
completely agrees that “Plaintiff’s complaint is merely a
naked assertion that the federal government should take
action in some unspecified way, similar to plaintiff’s
numerous other cases filed in this court that have been
deemed frivolous”. This court further agrees that plaintiff
cannot show that he is plausibly entitled to relief.
Accordingly, this court agrees that defendants motion to
dismiss the federal defendants as party defendants (#10)
Page 22 of 38
should be granted. This court also agrees that the case
should be remanded to state court and the motion to dismiss
for lack of personal jurisdiction (#7) filed by the Illinois
defendants should be deemed moot.
IT IS THEREFORE ORDERED THAT
(1) the report and recommendation (#19) is accepted by this
court.
(2) the defendants motion to dismiss the federal defendants
as party defendatns (#10) is GRANTED.
(3) defendants motion to dismiss for lack of personal
jurisdiction (#7) filed by the Illinois defendants is MOOT
and this case is remanded to the circuit court of Champaign
county.
(4) this case is terminated. Accordingly, the pro se motions
(#17, #18) filed by plaintiff are MOOT.
ENTERED this 26th day of September 2011
Michael P. McCuskey
chief US district judge.
We now turn to the truth of case 11-cv-2023
Contrary to the assertion of judge Bernthal/ taken
from the same original complaint (#1) 10-MR-906 DATED
12/ 30/10 used by judge Bernthal above
MY DEMAND AS STATED IS:
The demand: We/ I need to know: if this complaint
is based within the law/ if compliance to the standards set by
state and nation shall be applied/ or if this corporation
conforms and does not endanger the health, happiness, or
safety of the public. Therefrom with evidence in hand:
whether or not, I should or could take this corporation to
court IF NEEDED/ or more specifically ask the people of
this community if they will accept that damage, or “apply
for redress in a court of law to determine the boundaries
Page 23 of 38
and establish the difference once and for all: between liberty
and freedom. The question: to make the elevator stay
within its boundaries, by making them comply to the
standards set for our safety as citizens. Is a legal matter. If
our employees in the court don’t do their job; then they deny
the constitution itself. Leaving for me in court, to demand;
it’s the law. NOT, my job. The difference between money
rules our lives, OR we the people rule our society by vote
and accountability. IS FUNDAMENTAL TO LIFE IN
SOCIETY. If necessary the people will be asked: do they
wish to go on to court, IN REDRESS (our authority as
owners); by this evidence, THE STANDARDS OUR
FEDERAL EMPLOYEES CREATED. The protection of the
people/ the collection of evidence, is one in the same! IT IS,
The job of our employees.
THE COURT MISREPRESENTS MY LEGAL
ACTION: TO COLLECT EVIDENCE AND SET
STANDARDS, by law: and assumes this is a direct legal
action against the elevator so mentioned. It is not/ rather it
is a direct legal action to involve the governmental agencies
so declared to protect and serve the people of this state and
nation/ this community, and me. As to the constitutionally
valid assignment of evidence gathering, standards set, and
society protected thereby. I remind the court: YOU SET/
THE GOVERNMENTAL AGENCIES both state and nation
set: the standards being legally asked required for
consideration of courtroom actions. By setting those
standards YOU ACCEPTED the contractual obligation
to provide and perform the actions necessary to insure they
DO protect all the people, including me.
It is that evidence that grants to me, the right to bring
redress of grievances both state and nation: before the
people most affected by this invasion of our lives. Thereby
you are at this time forcibly restraining the true structure of
democracy. The right: to ask those affected, if they will
Page 24 of 38
demand the legal authority of a democracy/ to decide:
IF MONEY SHALL RULE OUR LIVES/ OR IF
DEMOCRACY SHALL HAVE ITS SAY. Is fundamental
to our authority as a democracy. Is critical to the future of
our nation and its children. Thereby declaring the
boundaries between those who make the rest pay for their
decision by insisting, “the money rules here”. Is NOT
consistent with the declaration of democracy which is we
rule ourselves by law, through our vote, under the
supervision of our contract with ourselves and our
employees. Which is the constitution and foundation
documents called the bill of rights and declaration of
independence.
In this matter: It is their right to decide to defend
themselves or not/ it is my legal right to ask within a
courtroom, as provided by redress of grievances guaranteed
in the law that rules our state and nation. If accountability in
this matter deserves our attention, our authority to decide for
ourselves. That law called constitutional democracy, IS
NOT the description of a judge. That law declares: THE
JUDGE SHALL OBEY, THIS LAW (redress); provided by
we the people, to ourselves. And present the power and
responsibility of democracy to each and every citizen. You
decide means: YOU take the blame, it was your decision.
The courts both state and federal have failed to obey
constitutional redress/ refuses to accept the law. This
federal court refuses / REFUSES to make the state IL court
obey its own constitutional guaranteed redress of grievances.
Thereby usurping article 3 of the US constitution. As is
consistent in the many trials that I have established, and are
portrayed by each judge in this and every trial. That is a
constitutional violation/ that is a conspiracy to deny.
Taken from supplement to brief 1/4/ 11 trial 10-
mr-906 But it is “a felony trespass” on our lives, when the
impact of their games, becomes the reality of what we must
Page 25 of 38
endure simply because they want more. I am paying, for
their greed/ they use, abuse, & take my freedom; thereby my
life away. Because they want more money, more pride, and
more power. Not a game for me/ an unjustifiable impact.
The same being true for all those affected, within the
environment they created, which we cannot escape. Greed
is a game/ it is not about survival, it is not about society:
greed is about power/ pride/ and selfishness. Greed is about
robbing others, so that you can have more. How is that
“democracy in action”? How is that freedom, when it
imprisons me with environmental consequences & changes
my life/ because of their actions. There is no constitutional
right to greed, only the right to participate for the benefit of
society and yourself.
Redress of grievances: is democracy in action/ or more
simply as WE THE PEOPLE! We do, own everything, as
we the people CAN change or demand society shall be, as
we see fit. Our lives/ our government/ our decisions; not a
ruler in sight: OUR CHOICE as a state or nation. As WE
THE PEOPLE! Therefore we decide for ourselves, one
citizen equals one vote. Keep it simple and plain, A
DEMOCRATIC REALITY. Redress is a choice of the
people/ they decide. But every educated decision requires
the necessary knowledge and understanding: consequently
our employees are responsible to us for truth.
There will be an attack of people who claim, “this is against
democracy/ this is an attack on their freedom to pursue
wealth by any means they desire”. IT IS NOT TRUE! This
is the essence of democracy, the very foundation of what it
means to be “WE THE PEOPLE”/ the OWNERS of this
place!
In democracy: No allowance is given, to discard the rest/ to
use, abuse, destroy, or threaten the others: just because you
want more. WE WANT MORE for our lives, than to be
inundated with your noise, and the reality of what you did to
Page 26 of 38
us/ what any other chose to do for money, that now costs us
our freedoms, our rights, our environment, and by that effect
essentially makes us your slaves! This by the fact “you
say”, we have no choice.
Democracy disagrees; regardless of what our employees say.
WE THE PEOPLE HAVE RIGHTS, WE OWN THIS
STATE AND NATION! No exceptions: it is treason to
suggest otherwise!
With regard to this situation, established by this trial: the
right of redress is “to contain the boundaries of greed/ to
stop the invasion of our lives/ to transform the reality of
“their work” to best practices for all our lives/ and to make
them stop taking from our lives, to pay, for their greed.
Explain to me: what is frivolous?
TAKEN FROM THE AMENDED COMPLAINT
TRIAL 10-MR-906 DATED 1/7/10 (should be 2011
instead of 10)
LET IT hereby be known, that in the interest of justice,
democracy, duty, and honor: the foundations of
constitutional law as are being tested here in this courtroom.
I Accept and declare that it is within the best interest of WE
THE PEOPLE of this state called ILLINOIS, and this nation
called the UNITED STATES OF AMERICA, be included in
this trial. Having the same rights, is without doubt: as this
is the law of redress on trial. The foundation of our
relationship as owners, to those we employ to do our
business of government.
The purpose of trial here, is to enforce the law/ and provide
legal redress of grievances to these people and to myself.
NOT by my actions/ but because it is the law. THE LAW is
Page 27 of 38
not subject to discretion/ it is compulsory! That means, NO
JUDGE, in this state or this nation has a right to reinterpret
this law in any form other than what it distinctly meant for
us, “we the people” as both state and nation. It is a felony
offense, to steal our laws/ and there is absolutely NO
IMMUNITY from penalty in those actions. There is in fact
a guaranteed penalty, due to the oath of office required of
those whose deliberate job is to enforce that very law,
without menacing it!
We have come to the point of trial, wherein it is clear: the
foundation of each argument has been tested/ the reality of
viewing, as is the truth of our democracy and the honor of
our judiciary showing/ and the clear need for intervention as
is the purpose of redress has been established for both state
and nation. That means it is now “our trial, as we the
people”/ RATHER than the listed plaintiff/ appellee; James
Frank Osterbur. Therein this formal notice of change, has
been defined/ the creation of deliberate inclusion for the
purpose of democracy in action, as we the people:
FUNDAMENTALLY PROVEN a right of this people.
It is the federal defendants that chose to take this
case from state to federal court/ not me, nor the state
defendants so charged in the originating case 10-mr-906.
They chose it/ they own it!
The originating extraordinary writ; dated September
12, 2011 by the USSC CLERK Ruth Jones now becomes a
writ of certiorari; and will be so stamped to inform. Any
other instructions for change, await that result/
this extraordinary writ is then filed.
Dated October 5, 2011.
Page 28 of 38
we now turn to the report and recommendation of judge
Bernthal
appending that file to this extraordinary writ.
11-cv-2023 REPORT AND RECOMMENDATION:
dated September 14, 2011
In December 2010, plaintiff James F. Osterbur, acting
pro se, filed a complaint in the champaign county sixth
judicial circuit court. In January 2011, the United States
defendants filed a notice of removal (#1). Plaintiff brought
suit against six government agencies with a “demand for
enforcement of the rules and laws”. In his complaint,
plaintiff primarily complained of the governments failure to
regulate a grain elevator in Royal IL, which created noise and
traffic.
United States defendants filed a motion to dismiss the
federal defendants as party defendants (#10). [1]
________________
1. The United States defendants include the US environmental
protection agency and the US occupational safety and health
administration.
_______________
Plaintiff filed a response (#15). In addition, Illinois
defendants filed defendants motion to dismiss for lack of
personal jurisdiction (#7). [2]
_________________
2. Illinois defendants include the IL dept of human rights, the IL
dept of agriculture, the IL EPA, and the IL dept of transportation.
________________
Plaintiff filed a response (#14). After reviewing the parties’
pleadings and memoranda, this court recommends, pursuant
to its authority under 28 U.S.C. 636 (b)(1)(B), that the
United States defendants motion to dismiss the federal
defendants as party defendants (#10) be GRANTED. The
Page 29 of 38
court further recommends that the defendants motion to
dismiss for lack of personal jurisdiction (#7) filed by Illinois
defendants be deemed MOOT, AMENDED COMPLAINT
LET IT hereby be known, that in the interest of justice,
democracy, duty, and honor: the foundations of
constitutional law as are being tested here in this courtroom.
I Accept and declare that it is within the best interest of WE
THE PEOPLE of this state called ILLINOIS, and this nation
called the UNITED STATES OF AMERICA, be included in
this trial. Having the same rights, is without doubt: as this
is the law of redress on trial. The foundation of our
relationship as owners, to those we employ to do our business
of government.
The purpose of trial here, is to enforce the law/ and provide
legal redress of grievances to these people and to myself.
NOT by my actions/ but because it is the law. THE LAW is
not subject to discretion/ it is compulsory! That means, NO
JUDGE, in this state or this nation has a right to reinterpret
this law in any form other than what it distinctly meant for us,
“we the people” as both state and nation. It is a felony
offense, to steal our laws/ and there is absolutely NO
IMMUNITY from penalty in those actions. There is in fact a
guaranteed penalty, due to the oath of office required of those
whose deliberate job is to enforce that very law, without
menacing it!
We have come to the point of trial, wherein it is clear: the
foundation of each argument has been tested/ the reality of
viewing, as is the truth of our democracy and the honor of our
judiciary showing/ and the clear need for intervention as is
the purpose of redress has been established for both state and
nation. That means it is now “our trial, as we the people”/
RATHER than the listed plaintiff/ appellee; James Frank
Osterbur. Therein this formal notice of change, has been
defined/ the creation of deliberate inclusion for the purpose of
Page 30 of 38
democracy in action, as we the people: FUNDAMENTALLY
PROVEN a right of this people. and that the case be
remanded to state court for further proceedings.
1. Background
In a complaint filed in state court, plaintiff filed a
“legal demand for enforcement of rules and laws” seeking
unspecified remedy, with respect to a grain elevator operated
in Royal Illinois, near plaintiff’s residence. Plaintiff alleges
that the elevator emits excessive noise, and the trucks driving
to and from the elevator create a traffic hazard. Defendants
have taken plaintiff’s complaint as a request for injunctive
relief to shut down the grain elevator.
Plaintiff’s claim is summarized in the following
excerpt from his complaint:
“Not a claim for money from me. Rather it is a
demand upon government officials to do your job, which is to
protect all our lives from injury, protect us from infraction of
the law that harms without cause/ or subsequently takes away
our freedom and our right to decide for our own lives:
thereby damaging our property or ability to remain in our
own homes. This is an unreasonable seizure of our
environment trespassing and causing in effect “an enemy
soldier to be quartered in my house/ without my consent; for
sustained period of time. MORE SIMPLE: keep this
corporation from dramatically affecting our lives, by
demanding they stay on their side of the line. Don’t trespass
over here/ not, past “the legal limit or this standard”. Is that
not, “what the law means”?
(#1-2, p 9). [3]
________________________
3. The above passage is taken from Plaintiffs original complaint
filed in state court. Plaintiff subsequently filed an Amended complaint
((#1-3). However, because the amended complaint provides no factual
detail supporting any claim against the defendants, the court considers
Page 31 of 38
plaintiffs’ original complaint, in the interests of liberally construing this
pro se complaint. Marshall v. Knight 445 F. 3d 965, 969 (7th cir. 2006)
___________________________
Plaintiff has filed many claims in this court within the
past year, with unspecified demands for redress of
grievances, demands for compliance with the constitution ,
and demands that government employees do their jobs [4].
_________________________
4. See, e.g. Osterbur v. Unites States , case no. 10-2257;
Osterbur v. State of IL case no. 10-2055; Osterbur v. Federal Bureau of
Investigation case no. 10-2277; and Osterbur v. Quinn, case no. 11-
2111, among others.
________________________
in a recent order from this court, entered after plaintiff filed
this instant lawsuit, the court sua sponte enjoined plaintiff
from filing any further lawsuits, motions, or pleadings in the
US district court, central district of IL, Urbana division (other
than habeas corpus petitions and criminal cases in which he is
a party defendant), unless those lawsuits, pleadings, and
motions are filed through counsel. Osterbur v. Quinn no 11-
2111 (C.D. ILL July 20, 2011) (#20, p 4).
II standard
The purpose of a motion to dismiss for failure to state
a claim is to test the sufficiency of the complaint, not to
decide the merits of the case. Gibson v. City of Chi., 910 F.
2d 1510, 1520 (7th cir. 1990). Federal rule of civil procedure
8 (a)(2). The complaint must give fair notice of what the
claim is and the grounds upon which it rests. E.E.O.C. v.
Concentra Health Servs,, inc. 496 F. 3d. 773, 776-77 (7th
cir. 2007). However, fair notice is not enough by itself; in
addition, the allegations must show that it is plausible, rather
than merely speculative, that the plaintiff is entitled to relief.
Tamayo v. Blagojevich, 526 F. 3d. 1074, 1083 (7th cir.
2008).
Page 32 of 38
When considering a motion to dismiss for failure to
state a claim, the court is limited to the allegations contained
in the pleadings. Venture assoc corp v. Zenith data sys corp.
987 F. 2d 429, 431 (7th cir. 1993). The court must treat all
well-pleaded allegations in the complaint as true, and draw
all reasonable inferences in the plaintiff’s favor. McMillan
v. Collection Prof’ls, inc 455 F. 3d 754, 758 (7th cir. 2006);
see Bell Atl Corp v. Twombly, 550 U.S. 544, 556 (requiring
plausible grounds for inferences if those inferences are to
sustain a complaint). In considering the plaintiff’s factual
allegations, the court should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory
legal statements. Brooks v. Ross, 578 F. 3d 574, 581 (7th cir.
2009). The application of the notice pleading standard is a
context-specific task, in which the height of the pleading
requirement is relative to circumstances. Cooney v. Rossiter
583 F. 3d. 965, 969 (7th cir. 2006) (citing Ashcroft v. Iqubal,
129 S. ct. 1937, 1950 (2009). Furthermore, district courts are
required to liberally construe complaints filed by pro se
litigants. Marshall v. Knight, 445 f. 3d 965, 969 (7th cir.
2006) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972).
III. United States Defendants’ Motion to dismiss
(#10)
The United States defendants have filed a motion to
dismiss the federal defendants as party defendants (#10)
because plaintiff has not established an applicable waiver of
sovereign immunity to the cause of action. FDIC v. Meyer
510 U.S. 471, 475 (1994) (Stating “[a]bsent a waiver,
sovereign immunity shields the federal government and its
agencies from suit”.) Plaintiff has the burden to demonstrate
that congress has waived the United States sovereign
immunity. Cole v. United States 657 F. 2d 107, 109 (7th cir.
1981). Here, plaintiff has pointed to no statutory waiver of
sovereign immunity to support his claims against the United
Page 33 of 38
States defendants.
However, plaintiffs seeking to compel agencies to
take certain actions often invoke the administrative procedure
act to establish a waiver of sovereign immunity. Sovereign
immunity is a jurisdictional bar where a suit threatens to
impose upon the United States liability for money or property
damages or some form of coercive injunctive relief. United
States v. Rural Elect Convenience coop. Co., 922 F. 2d
429, 434 (7th cir. 1981). Here, plaintiff has requested
injunctive relief. Prospective relief requiring governmental
officials to obey the law has long been available under Ex
parte Young doctrine, and then later through 702 of the
administrative procedure act. EEOC v. Peabody W. Coal co.
610 F. 3d 1070, 1085-86 (citing Ex parte Young, 209 U.S.
123 (1908) and administrative procedure act 5 U.S.C. 702).
The waiver of sovereign immunity in 702 applies “when any
federal stature authorizes review of agency action, as well as
in cases involving constitutional challenges and other claims
arising under federal law”. Michigan v. US, Army Corps of
Eng’s, no 10-3891, 2011 WL 3836457 at *8 (7th cir. Aug 24,
2011). The seventh circuit has recently rejected the argument
that this waiver of sovereign immunity only applies where
there has been final agency action. Id.
It seems, therefore, that if plaintiff has adequately
pled a constitutional violation or other violation of federal
law perpetrated by the United States defendants, then the
waiver of sovereign immunity could apply. Even though
plaintiff failed to identify 702 as the waiver of defendants
sovereign immunity, this court must liberally construe
complaints filed by pro se litigants. Marshall v. Knight 445
F. 3d 965, 969 (7th cir. 2006). Therefore, the court proceeds
to consider whether plaintiff has adequately alleged a
constitutional violation or other claim arising under federal
law.
United States defendants argue that plaintiff has failed
to comply with federal rule of civil procedure 8(a), for failing
Page 34 of 38
to provide a “short and plain statement of the claim showing
that the pleaders is entitled to relief”. Ashcroft v. Iqbal 129
S. Ct. 1937, 1949 (2009). The complaint must give fair
notice of what the claim is and the grounds upon which it
rests. E.E.O.C. v. Concentra Healthc Servs inc. 496 F. 3d
773, 776-77 (7th cir. 2007). Here, as defendants note, the
complaint fails to provide notice regarding what provisions of
law they allegedly violated, and in what manner they violated
the law. Plaintiff fails to cite any statutory or regulatory law
supporting his claims. Though plaintiff provides some detail
regarding the noise and traffic generated by the grain
elevator, he does not connect this to any act or omission by
the United States defendants that may be a basis for their
liability. A complaint does not need to identify legal theories,
and specifying an incorrect legal theory is not normally a fatal
error. Rabe v. United Air Lines inc 366 F. 3d 866, 872 (7th
cir. 2011). However, this court concludes that the sparse
factual allegations regarding defendants acts or omissions ,
combined with the lack of a discernable legal theory, amount
to failure to provide sufficient notice of the basis for the
claim. Furthermore, the court notes that a district court is
entitled to draw upon its familiarity with a plaintiff’s prior
meritless litigation to conclude that a complaint consists only
of naked assertions and delusional scenarios. Nietzke v.
Williams 490 U.S. 319, 328 (1989). Here, plaintiffs
complaint is merely a naked assertion that the federal
government should take action in some unspecified way,
similar to plaintiff’s numerous other cases filed in this court
that have been deemed frivolous. In short, plaintiffs
complaint fails to give fair notice of the claim or the grounds
upon which it rests.
Furthermore, the allegations must show that it is
plausible, rather than merely speculative, that the plaintiff is
entitled to relief. Tamayo v. Blagojevich 526 F. 3d. 1074,
1083 (7th cir. 2008). The few factual details that plaintiff
provides indicate that, even if plaintiff were granted leave to
Page 35 of 38
amend his compliant, he is not plausibly entitled to relief.
Plaintiffs basis allegation is that the federal government has
failed to intervene to limit noise and pollution originating
from a privately operated grain elevator near his home. Thsi
does not amount to a constitutional violation. As such, even
if plaintiff were granted leave to amend his complaint, he
could not state a claim for which he is plausibly entitled to
relief, nor overcome the obstacle of the defendants sovereign
immunity discussed above. This court therefore recommends
that the motion to dismiss the federal defendants as party
defendants (#10) be granted.
IV Illinois defendants motion to dismiss for
lack of personal jurisdiction (#7)
Illinois defendants move to dismiss plaintiff’s
complaint for lack of personal jurisdiction, insufficient
process, and insufficient service of process. A district court
may not assert personal jurisdiction over a defendant unless
the defendant has been properly served with process. United
States v. Ligas 549 F. 3d 497, 500 (7th cir. 2008). Illinois
defendants indicate there have been numerous errors and
omissions in process and service of process. 5
_________________
5. Illinois defendants attach a copy of the court docket for the
case from the champaign county circuit clerk, along with numerous other
exhibits cataloging what defendants have received from plaintiff. (#8-1).
Perhaps the most succinct explanations of what materials Illinois
defendants have received are contained in the Affidavits included at (#8-
1, pp. 74-80).
_________________
Illinois defendants argue that plaintiff has failed to
comply with federal rule of civil procedure 4 in the following
respects: (1) plaintiff has not delivered a cop0y of a federal
summons or of the complaint to any of the state defendants
Page 36 of 38
chief executive officers (FED. R. CIV. P. 4(j)(2)(A)); (2)
Plaintiff has not filed an affidavit attesting to proof of service
(FED. R. CIV. P. 4 (1)(1); FED R. CIV. P. 4 (c)(1); and (3)
Plaintiff has not served a copy of a summons and complaint
on each state defendant in the manner prescribed by Illinois
law. (FED. R. CIV. P. 4 (j)(2)(B)).
Illinois defendants additionally argue that plaintiff has
failed to comply with the following applicable state laws
governing service of process: (1) plaintiff has not served the
correct individuals (735 ILCS 5/2-211); (2) plaintiff failed to
employ an authorized process server or accomplish personal
service of process where it was required (735 ILCS 5/ 2-202).
(3) plaintiff never sent a summons to the Illinois EPA, the IL
dept of human rights never received a copy of the amended
complaint; and (4) Plaintiff failed to file any proof of service
(ILL S. CT. R. 12 (a); 102(d)).
The courts analysis of these arguments begins with 28
U.S.C. 1448, governing service of process in removal cases:
In all cases removed from any state court to any
district court of the United States in which any one or more
of the defendants has not been served with process or in
which the service has not been perfected prior to removal, or
in which process served proves to be defective, such process
or service may be completed or new process issued in the
same manner as in cases originally filed in such district court.
28 U.S.C. 1448.
Section 1448 allows for completion of state service
of process if the process was commenced prior to the date of
removal. Schmude v. Sheahan 214 F.R.D. 487, 490
(N.D.III. 2003). After removal, a plaintiff has two options for
providing proper service of process: (1) service pursuant to
federal rule of civil procedure 4, or (2) service pursuant to
state court rules if the plaintiff commenced such service prior
to removal. Id.
Plaintiff has not taken any steps to accomplish service
Page 37 of 38
of process since this case was removed to federal court. This
is evident from this courts docket, as well as exhibits
submitted by Illinois defendants. [6]
_______________
6. Plaintiffs response to Illinois defendants’ motion to dismiss
does not dispute any of the defendants factual assertions, other than to
note that plaintiff mailed a “supplemental brief” to defendants on
February 18, 2011.
___________________
Therefore, the primary inquiry here is whether
plaintiff has satisfied the IL procedural rules for process and
service of process. See Romo v. Gulf Stream Coach. Inc.
250 F. 3d. 1119, 1123 (7th cir. 2001) (recognizing that
federal courts have the power to review the sufficiency of
state service of process in removal cases).
However, at this juncture, the court recommends that
the case be remanded to state court, and that the IL
defendants motion concerning this courts personal
jurisdiction be deemed moot. Whenever a claim over which
this court may exercise jurisdiction is joined with an
otherwise non-removable claim, the district court may, in its
discretion, remand all matters in which the state law
predominates. 28 U.S.C. 1441 (c). Here, as indicated above,
this court has already determined that the plaintiff has failed
to adequately allege any constitutional violation or other
violation of federal law. The court recommends dismissing
the United States defendants, whose presence was the
original basis for federal jurisdiction. The court is now left in
the uncomfortable position of being asked to analyze IL
procedural rules in a case between the state of IL and a
citizen of IL. Even if this court were to determine that it had
personal jurisdiction, any claims going forward would
concern IL law. The court therefore recommends that the IL
defendants motion to dismiss be deemed moot, and that the
case be remanded to state court for further proceedings.
Page 38 of 38
V. Summary
For the reasons discussed above, this court
recommends that the United States defendants Motion to
Dismiss the federal defendants as party defendants (#10) be
GRANTED. The court further recommends that the
defendants motion to dismiss for lack of personal jurisdiction
(#7) filed by IL defendants be deemed MOOT, and that the
case be remanded to state court for further proceedings.
The parties are advised that any objection to this
recommendation must be filed in writing with the clerk
within 14 days after being served with a copy of this report
and recommendation. See 28 U.S.C. 636 (b)(1). Failure to
object will constitute a waiver of objections on appeal Video
Views, inc. V. Studio 21 ltd, 797 F. 2d 538, 539 (7th cir.
1986).
Entered this 14th day of September 2011
David G. Bernthal
US MAGISTRATE JUDGE