Opinion
21-cv-03155-JCS
07-03-2021
STEPHANIE ANN GUMBER, Plaintiff, v. KEITH FAGUNDES, et al., Defendants.
REPORT AND RECOMMENDATION
JOSEPH C. SPERO Chief Magistrate Judge
I. INTRODUCTION
Plaintiff Stephanie Ann Gumber brings this action pro se. The Court has granted Gumber's application to proceed in forma pauperis and therefore is required to review the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Gumber has consented to the jurisdiction of the undersigned magistrate judge, see dkt. 8 at ECF p. 5, but Defendants have not been served or consented to magistrate jurisdiction. Because Gumber has filed a Motion for Emergency Injunction, see dkt. 10, this case will be reassigned to a district court judge with the following Report and Recommendation.
II. BACKGROUND
In addition to her complaint, Gumber has filed two motions that are currently pending. The first is described as a petition for removal. Dkt. 8. (“Motion to Remove”). The second is a Motion for Emergency Injunction.
A. Complaint
The factual allegations in the Complaint are difficult to follow. From what the undersigned can glean from the Complaint, this case appears to be based on an underlying criminal case against the plaintiff in California state court, in the Criminal Division of Kings County Superior Court (“the State Court action”). Plaintiff appears to assert claims against Assistant District Attorneys Keith Fagundes, “John Doe” Johnson and “John Doe” Kylo based on vaguely alleged constitutional violations, including the court's denial of a motion challenging the jurisdiction of the Superior Court that Plaintiff filed in that case. See Complaint at ECF pp. 2-3. In particular, she alleges as follows:
Plaintiff was charged in State court with violations of California Statutes and Codes by Defendant. Plaintiff submitted a jurisdictional challenge and a demand to prove the constitutionality of the statutes codes. Defendant failed to prove jurisdiction and failed to prove constitutionality of statutes codes used against Plaintiff in State Court. This is a direct violation of the 22 supreme court decisions given to court and Defendant (see exhibit A) which says once jurisdiction is challenged it must be proven on the record and never attempted to prove the constitutionality of statutes codes. Plaintiff submitted evidence that statutes codes are unlawful and unconstitutional. Plaintiff proved in the court hearing that the State of California is a corporation for profit, that the court is a military court and statutes codes are military law. Plaintiff demanded a trial in a court of record and has been denied in violation of the California Constitution and the Constitution for the united states of America. Defendant was required to prove jurisdiction of the State Court, and prove the constitutionality of the statutes codes and failed. The Supreme court stated that once jurisdiction is challenged it must be proven on the record before the court can move one inch forward in the case. Plaintiff submitted a demand for dismissal to the State Court which was ignored (see exhibit B)[.]Complaint at ECF pp. 2-3 & Ex. A (state court jurisdictional motion).
Plaintiff also alleges that in the State Court action, she was “ordered . . . to take a psychological evaluation on April 21, 2021 or be put in jail for not following a court order.” Id. at ECF p. 3. Although it is not clear whether she complied with the court's order, Plaintiff alleges that she was “arrested with no valid warrant, jailed for 1 days[, ]” id. at ECF p. 8, and that the court “forced [her] to have an esquire attorney Woodbury.” Id. Plaintiff alleges that this was a constitutional violation. Id.
Plaintiff alleges that the defendants “maliciously charged [her] with some sort of crime bringing fraud upon the court” and that the name in the caption of the State Court action is “not even me” because the name is in all capital letters and therefore, is “a fictitious entity.” Id. at ECF pp. 3-4.
Plaintiff seeks to assert claims against all three defendants under 42 U.S.C. § 1983 based on unspecified constitutional violations. Id. at 4. She alleges that these claims should not be barred by a state immunity defense. Id. She also asserts violations of 18 U.S.C. §§ 241, 242, 9121964(c) and 1201(c); 42 U.S.C. § 1986; and 34 U.S.C. § 12601.
Plaintiff also asserts that Defendants are foreign agents because they are members of the California Bar Association, id. at ECF pp. 9-10; that they have impersonated public officials, id. at 10; and that the judge in the State Court action has a Bar card and therefore cannot preside over that action, id. at ECF p. 12. She also contends “The State Bar Act was created and exists as a state created monopoly on the practice of law, which is a direct violation of the Texas Constitution article 1, section 26.” Id. She seeks damages in the amount of $1,000,000 as a remedy for “unlawful arrest and one day unlawful incarceration under cruel and unusual circumstances.” Id. at ECF p. 14.
B. Motion to Remove
On May 21, 2021, Plaintiff filed a motion entitled “petition for removal of state court case to Federal case.” Dkt. 8 (“Motion to Remove”). In it, she seeks to remove the State Court action to this Court under 28 U.S.C.§ 1446(b), and 28 U.S.C. §§ 1331 and 1367. Motion to Remove at ECF p. 4. It appears that this request is based on Plaintiff's belief that Defendants have committed constitutional violations against her in the State Court action and Kings County Superior Court does not have jurisdiction to adjudicate constitutional claims. Id. at ECF p. 3.
C. Motion for Emergency Injunction
On July 1, 2021, Plaintiff filed a Motion for Emergency Injunction under Rule 65 of the Federal Rules of Civil Procedure seeking an order “enjoining and prohibiting the Superior Court of California County of Kings Criminal Division, and all of its employees in the State of California from incarcerating [her] in Atascadero State Mental Facility.” Motion for Emergency Injunction at ECF p. 3. She represents that the Judge in the State Court action has ordered that she be incarcerated at Atascadero State Mental Facility because she is “not competent.” Id. at 2. Plaintiff bases her request on alleged violations of statutes by Defendant Fagundes and the allegation that the Superior Court does not have jurisdiction in the State Court action. Id. at ECF p. 4. According to Plaintiff, the Court need not hold a hearing on the motion and may, instead, enter the requested preliminary injunction based on review of the record. Id. at ECF p. 3.
The motion also states that Plaintiff seeks an order “enjoining Keith Fagundes” based on her “14th Amendment rights guaranteed by the constitution[, ]” id. at 1, but does not describe any specific injunctive relief sought against that Defendant.
III. ANALYSIS
A. Legal Standards Governing Review Under 28 U.S.C. § 1915
Under 28 U.S.C. § 1915(e)(2)(B), where the Court has granted an application to proceed in forma pauperis, it must review the complaint and dismiss it if it is (1) frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim and must be dismissed.
In determining whether a plaintiff fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Likewise, in reviewing a complaint, the Court need not accept allegations that are “fantastic or delusional, ” “fanciful, ” or “rise to the level of the irrational or wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). The pertinent question is whether the factual allegations, assumed to be true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).
Where the complaint has been filed by a pro se plaintiff, courts must “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies in the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).
B. Sufficiency of the Complaint
Plaintiff asserts claims against all three defendants under 42 U.S.C. § 1983, 18 U.S.C. §§ 241, 242, 9121964(c) and 1201(c); 42 U.S.C. § 1986; and 34 U.S.C. § 12601. As currently pled, however, she fails to state any cognizable claim.
1. Title XVIII Claims
Plaintiff asserts a number of claims under the United States Criminal Code (Title XVIII). As a general rule, “[f]ederal criminal statutes provide no basis for civil liability.” Hauser v. Smith, No. CV2008138PCTJATJFM, 2021 WL 2262551, at *3 (D. Ariz. June 3, 2021). It is only under rare circumstances that courts will imply a private right of action to enforce criminal laws. See Chrysler Corp. v. Brown, 441 U.S. 281, 284 (1979). There is no private right of action under 18 U.S.C. §§ 241, 242, 912 or 1201(c). Diaz v. City of San Fernando, No. CV 13-6047 DDP (AJW), 2015 WL 13237402, at *5 (C.D. Cal. June 18, 2015), report and recommendation adopted, No. CV 13-6047 DDP (AJW), 2015 WL 13238926 (C.D. Cal. Aug. 28, 2015) (concluding that the plaintiff's claims under 18 U.S.C. §§ 241 and 242 failed to state a claim because there is no private right of action as to those provisions) (citing Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (dismissing a plaintiff's civil claims under 18 U.S.C. §§ 241-242 because those statutes “provide no basis for civil liability”)); Hauser, 2021 WL 2262551, at *3 (concluding that the plaintiff's claim under 18 U.S.C. § 912, for impersonating a United States officer, failed to state a claim because there is no private right of action under that section) (citing Frison v. Zebro, 339 F.3d 994, 998-1000 (8th Cir. 2003) (no private right of action for violation of proscription against impersonating federal officer under 18 U.S.C. § 912)); McCoy v. Carter, No. CV-13-00222-TUC-BPV, 2013 WL 6836606, at *6 (D. Ariz. Dec. 26, 2013) (holding that there is no private right of action under 18 U.S.C. § 1201, for kidnapping). Therefore, these claims fail to state a claim and cannot be cured by amendment.
Further, to the extent Plaintiff may seek to assert a claim under 42 U.S.C. § 1983 based on violations of these provisions, those claims also fail because “in order to seek redress under § 1983, there must be a private right of action to enforce the underlying federal statute.” McCoy v. Carter, 2013 WL 6836606, at *6 (citing Keaukaha-Panaewa Comm. v. Hawaiian Homes, 739 F.2d 1467, 1470-71 (9th Cir.1984); Blessing v. Freestone, 520 U.S. 329, 340-341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). Therefore, it is recommended that the Court dismiss these claims with prejudice and without leave to amend.
While there is a private right of action to seek civil remedies to redress damage to an individual's business or property that are proximately caused by violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), see 18 U.S.C. § 1964(c), Plaintiff here has not alleged any underlying RICO violation to support that claim or alleged any facts that would establish racketeering that proximately caused a cognizable injury to her. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 453 (2006) (RICO prohibits certain conduct involving a “pattern of racketeering activity” and a plaintiff “may sue under § 1964(c) only if the alleged RICO violation was the proximate cause of the plaintiff's injury.”). Therefore, that claim fails to state a claim as well and should be dismissed.
Under 42 U.S.C. § 1983, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ” A “person” for the purposes of this provision includes cities, counties, and local officers sued in their official capacity. McMillian v. Monroe County, 520 U.S. 781, 784-85, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). On the other hand, state officers are protected by the Eleventh Amendment and the doctrine of sovereign immunity and therefore are not “persons” under Section 1983. Womack v. Cty. of Amador, 551 F.Supp.2d 1017, 1026 (E.D. Cal. 2008) (citing Howlett v. Rose, 496 U.S. 356, 365 (1990)).
The Ninth Circuit has held that “a California district attorney is a state officer when deciding whether to prosecute an individual” but that there are “certain instances a district attorney in California is a county officer.” Weiner v. San Diego Cty., 210 F.3d 1025, 1031 (9th Cir. 2000) (citing Modoc Cty. v. Spencer, 103 Cal. 498, 502 (1894)); see also Vargas v. Merced Cty. Dist. Attorney's Off., No. CVF-08-1707 OWW/GSA, 2009 WL 805305, at *6 (E.D. Cal. Mar. 26, 2009) (“In Pitts v. County of Kern, 17 Cal.4th 340, 70 Cal.Rptr.2d 823, 949 P.2d 920 (1998), the California Supreme Court concluded that a district attorney acts on behalf of the state rather than the county in preparing to prosecute crimes and in training and developing policies for prosecutorial staff.”). Thus, in Weiner, the court held that the plaintiff's Section 1983 claim against a California district attorney failed because it was based on the district attorney's decision to prosecute him. 210 F.3d at 1031.
Further, the Supreme Court has held that under Section 1983, as at common law, a prosecutor is entitled to absolute immunity with respect to conduct that is “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 427, 430-431 (1976) (reserving the question of whether prosecutors enjoy absolute immunity “for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.”). Such conduct includes, for example, “appearing before a judge and presenting evidence in support of a motion for a search warrant.” Burns v. Reed, 500 U.S. 478, 491-92 (1991); see also Braunstein v. Roger, No. 3:10-CV-00051-ECR, 2010 WL 3025221, at *3 (D. Nev. May 20, 2010), report and recommendation adopted, No. 3:10-CV-00051-ECR, 2010 WL 3025214 (D. Nev. July 30, 2010) (Observing that “[a] state official sued in his or her personal capacity may be entitled to assert common-law or absolute immunities” and dismissing claims asserted against district attorney sued in individual capacity on the basis of prosecutorial immunity); Mackenzie v. Hutchens, No. LA CV 12-00584-VBF-J, 2013 WL 8291423, at *2 (C.D. Cal. Sept. 9, 2013), judgment entered, No. CV 12-00584-VBF-JCC, 2013 WL 12066015 (C.D. Cal. Sept. 9, 2013), and aff'd, 623 Fed.Appx. 483 (9th Cir. 2015) (noting that the court had previously dismissed claims against district attorney sued in official and personal capacity); see also Mackenzie, dkt. 9 (reflecting that dismissal was based on prosecutorial immunity).
Here, Plaintiff alleges that Defendants are assistant district attorneys of Kings County and they “maliciously charged her with some sort of crime.” To the extent her claims are directed at Defendants' decision to prosecute her in the State Court action, Defendants are state officers for the purposes of her claims and therefore may not be subject to liability under Section 1983. Further, to the extent she asserts that Defendants committed constitutional violations by apparently opposing the jurisdictional challenge she brought in the State Court action, the undersigned concludes that that conduct was “intimately associated with the judicial phase of the criminal process” and therefore, that Defendants are entitled to absolute immunity on those claims, which precludes the imposition of liability for damages against them.
Accordingly, the undersigned recommends that the Court dismiss Plaintiff's claims under 42 U.S.C. § 1983.
“A claim can be stated under [42 U.S.C. § 1986] only if the complaint contains a valid claim under [42 U.S.C. § 1985].” Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). “Section 1986 imposes liability on every person who knows of an impending violation of section 1985 but neglects or refuses to prevent the violation.” Id. Section 1985 prohibits conspiracies by two or more persons to interfere with certain civil rights. Id. Plaintiff does not assert a claim under Section 1985 and therefore, her claim under Section 1986 fails to state a claim. The undersigned recommends that this claim be dismissed.
Under Section 12601, it is unlawful for of employees of government agencies “with responsibility for the administration of juvenile justice or the incarceration of juveniles” to engage in a “pattern or practice” “that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 34 U.S.C. § 12601(a). This section authorizes the Attorney General to bring a civil enforcement action to “obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.” 34 U.S.C. § 12601(b). There is no private right of action to enforce this section. Taylor v. MacDougall, No. 19-cv-01869 RAJ-JRC, 2020 WL 7232535, at *4 (W.D. Wash. June 12, 2020), report and recommendation adopted, No. 19-cv-01869 RAJ-JRC, 2020 WL 7232152 (W.D. Wash. Dec. 8, 2020) (recommending dismissal of claim under 34 U.S.C. § 12601 because there is no private right of action under that provision). Therefore, this claim should be dismissed with prejudice and without leave to amend as it cannot be cured.
C. The Motion to Remove
In her Motion to Remove, Plaintiff seeks to remove the State Court action to this Court under 28 U.S.C. §§ 1331 (providing for original jurisdiction over cases that raise a “federal question”), 1367 (providing for the exercise of supplemental jurisdiction) and 1446 (governing procedures for removal to federal court). The undersigned construes the motion as an attempt to remove under 28 U.S.C. § 1441, which allows for the removal of state court “civil actions” in which there is original jurisdiction, on the basis that the State Court action raises federal questions, namely, whether the proceedings in the Kings County Superior Court have violated Plaintiff's constitutional rights. The removal statutes are construed strictly against removal, however, and therefore, this provision, on its face, does not allow for the removal of a state court criminal action to be removed to federal court. See F.B.I. v. Superior Ct. of Cal., 507 F.Supp.2d 1082, 1088 (N.D. Cal. 2007) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992)). Nor has the undersigned found any other valid basis for removal of the State Court action to this Court. Therefore, this motion should be denied.
D. The Motion for Emergency Injunction
In the Motion for Emergency Injunction, Plaintiff asks the Court to enjoin the enforcement of an Order in the State Court action that she be incarcerated at Atascadero State Mental Facility. The relief that Plaintiff seeks is barred under the Anti-Injunction Act, 28 U.S.C. § 2283, which provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
The Anti-Injunction Act imposes an absolute prohibition on federal courts “against enjoining state court proceedings, unless the injunction falls within one of [the] three specifically defined exceptions” in the statute. Atlantic Coast Line R.R. Co. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 286, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). The three exceptions are narrowly construed, and “doubts as to the propriety of a federal injunction against a state court proceeding should be resolved in favor of permitting the state action to proceed.” Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988).
The first exception, permitting injunctive relief where it is “necessary in aid of [the court's] jurisdiction, ” applies only where the injunctive relief is “necessary to prevent a state court from so interfering with a federal court's consideration or disposition of a case as to seriously impair the federal court's flexibility and authority to decide that case.” Id. (internal quotations and citation omitted). “The mere existence of a parallel action in state court does not rise to the level of interference with federal jurisdiction necessary to permit injunctive relief under the ‘necessary in aid of' exception.” Id. (citation omitted). The order that Plaintiff be incarcerated at Atascadero State Mental Facility does not fall within this exception as it does not interfere with this Court's consideration of Plaintiff's claims.
The second exception, allowing an injunction against a state court where “expressly authorized” by Congress, applies, inter alia, where a state court action has been removed pursuant to 28 U.S.C. § 1441, as courts have found that that 28 U.S.C. § 1446(e) (providing that “the State court shall proceed no further unless and until the case is remanded”) amounts to such a Congressional authorization. Id. (“This prohibition has been construed as an express congressional authorization to enjoin or stay the state court proceedings.”). As discussed above, however, Section 1441 does not authorize the removal of a state court criminal action and Plaintiff has pointed to no provision that allows her to remove the State Court action to this Court. Consequently, this exception also does not apply.
Finally, the injunctive relief Plaintiff seeks is not required to protect any judgment by this Court and therefore, the third exception does not apply. Therefore, the undersigned finds that the relief Plaintiff seeks is barred by the Anti-Injunction Act and recommends that the Motion for Emergency Injunction be DENIED.
IV. CONCLUSION
For the reasons stated above, the Court recommends that Plaintiff's Motion to Remove (dkt. 8) and Motion for Emergency Injunction (dkt. 10) be denied and that the complaint be dismissed, in its entirety, under 28 U.S.C. § 1915 on the basis that it fails to state any valid claim. In light of Plaintiff s pro se status, the Court may wish to permit her to file an amended complaint. The undersigned concludes, however, that Plaintiff cannot cure the defects associated with her claims under 18 U.S.C. §§ 241, 242, 912 and 1201(c) or 34 U.S.C. § 12601 because there is no private right of action as to those claims. Therefore, it is recommended that the Court dismiss those claims with prejudice and without leave to amend. Because the incarceration Plaintiff seeks to enjoin may be imminent, this case will be reassigned to a United States district judge for all further proceedings, including action on these recommendations. Any party may file objections to the recommendations stated herein no later than fourteen days after the date of this Report and Recommendation.