Wong v. Garland

Opinion

UNITED STATES DISTRICT COURT FILED AUG. 23, 2021 FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District & Bankruptcy Court for the District of Columbia ) SHUSHEAN WONG, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 1:21-cv-02062 (UNA) ) MERRICK GARLAND, ) ) Defendant. ) ___________________________________ )

MEMORANDUM OPINION

This matter is before the court on plaintiffs’ applications to proceed in forma pauperis

(“IFP”) and their pro se complaint. The court will grant the applications to proceed IFP and

dismiss the complaint for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(h)(3) (requiring

dismissal of an action “at any time” the court determines that it lacks subject matter jurisdiction),

and for failure to state a claim, see 28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiffs, Shushean Wong and David Lee Koplow, have filed a complaint seeking the

issuance of a writ of habeas corpus, and other declaratory and injunctive relief. Wong is domiciled

in Massachusetts and Koplow’s location is unclear. Wong, seemingly the mother of a minor child,

CW, alleges that she and the child are subjects of a “violent criminal conspiracy,” which has

resulted in (1) CW’s removal from her care which Wong equates to “kidnapping[,]” and (2) threats

to imprison Wong so that she is unable “to litigate for her [CW]” and bring CW back into her care.

Wong alleges that she has attempted to contact the Attorney General several times by letter in

order to report this alleged government conspiracy to “kidnap and imprison children from [their]

natural famil[ies]” orchestrated by unknown actors “to make money by abuse of sovereign power and state corruption.” Wong’s attempts to contact the Attorney General have been allegedly

thwarted, however, by the mail clerk at the Office of the Attorney General. Wong believes that

the Attorney General “is the only one who can right the wrong done to” her and seeks (1) an order

from this court granting her access and the ability to communicate directly with the Attorney

General, and (2) a writ of habeas corpus returning CW to her custody and care. Plaintiffs has also

filed a motion for preliminary injunction seeking the same relief.

Here, plaintiffs face hurdles that they cannot overcome. First, Koplow’s connection to

these facts and claims is entirely ambiguous. See Fed. R. Civ. P. 8(a). Second, a “writ of habeas

corpus shall not extend to a [plaintiff] unless” she is “in custody” under some authority. 28 U.S.C.

§ 2241(c). A person is generally considered “in custody” if she is being held in a prison or jail, or

if she is released on conditions of probation or parole, see, e.g., Jones v. Cunningham, 371 U.S.

236, 240–43 (1963) (holding that a paroled petitioner is “in custody” because parole restrictions

“significantly restrain petitioner’s liberty”), or subject to other “substantial” non-confinement

restraints on liberty, see, e.g., Hensley v. Municipal Court, 411 U.S. 345, 351–53 (1973) (holding

that a petitioner released on his own recognizance pending appeal of his sentence was “in custody”

for purpose of habeas). Nothing in the complaint suggests that either of the plaintiffs are currently

is incarcerated, or are probationers or parolees, or are otherwise restrained as defined by the statute.

Assuming arguendo that Wong is, as represented, “next friend” for CW, which the court does not

concede based on the other circumstances alleged, she still may not seek a writ of habeas corpus

on CW’s behalf because there is similarly absolutely no indication that CW, a minor, is “in

custody” as defined by the habeas corpus statute.

Third, plaintiffs may not initiate criminal proceedings by filing a complaint with this court.

Powell v. Katzenbach, 359 F.2d 234, 234–35 (D.C. Cir. 1965) (per curiam) (holding that the judiciary “will not lie to control the exercise” of Attorney General's discretion to decide whether

or when to institute criminal prosecution), cert. denied, 384 U.S. 906 (1966); Sattler v. Johnson,

857 F.2d 224, 227 (4th Cir. 1988) (refusing to recognize constitutional right “as a member of the

public at large and as a victim to have the defendants criminally prosecuted”); Sibley v. Obama,

866 F. Supp. 2d 17, 22 (D.D.C. 2012) (holding same). Similarly, plaintiffs cannot compel a

criminal investigation, or force the Office of the Attorney General to take specific action, by filing

a complaint with the court. See Otero v. U.S. Attorney General, 832 F.2d 141, 141–42 (11th Cir.

1987) (per curiam); see also Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982).

Finally, to the extent that plaintiffs seems to contest the custody determination regarding

CW, any such allegations fail to implicate constitutional or federal statutory rights, and as such,

should be contested in the relevant local court(s) where the proceedings were initiated. See

Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981) (no constitutional right to

counsel in civil actions where plaintiff's personal liberty is not at stake); see also Bennett v.

Bennett, 682 F.2d 1039, 1042 (D.C. Cir. 1982) (child custody issues uniquely suited to resolution

in local courts).

For all of the foregoing reasons, the complaint, ECF No. 1, and this case, are dismissed,

and the motion for preliminary injunction, ECF No. 3, is denied for the same reasons discussed

herein. A separate order accompanies this memorandum opinion.

Date: August 23, 2021 /s/______________________ EMMET G. SULLIVAN United States District Judge