Opinion
Civil Action 21-62
06-07-2021
WILLIAM F. KAETZ, Plaintiff, v. UNKNOWN U.S. MARSHALS, et al., Defendants.
Judge Ranjan Magistrate
ORDER
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Second Amended Complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B).
II. Report
A. Procedural Background
Plaintiff William F. Kaetz originally brought this pro se action arising out of events that led to his current incarceration. He is a federal pretrial detainee in custody at the Allegheny County Jail awaiting trial on charges of threats to assault and murder a United States District Judge, interstate communications containing threats to injure, making restricted information publicly available and being a felon in possession of a firearm and ammunition.
Plaintiff's criminal case had been pending in the District of New Jersey at docket number 2:21-cr-71 (D.N.J.) before District Judge J. Nicholas Ranjan of this district. On May 11, 2021, Judge Ranjan granted a motion for transfer of venue and the case was transferred to this Court and docketed at No. 2:21-cr-211.
On January 13, 2021, Plaintiff submitted a civil rights complaint to this district without paying the filing fee or submitting a motion for leave to proceed in forma pauperis (“IFP”). After he submitted the motion to proceed IFP, the case was reopened and his Complaint was docketed on February 25, 2021 (ECF No. 11).
In his original Complaint, Plaintiff alleged that, during one or more civil cases that he had filed in the District of New Jersey, he came to believe that the “alleged federal judge” who was assigned to his cases failed to do her judicial duties, was biased against him and acted with a “total lack of jurisdiction” by violating his due process rights and her oath of office. As a result, he “petitioned” U.S. marshals to “question” the judge. Instead, they took his words out of context and “rearranged” them to “create the illusion of a crime” and he was arrested.
The Complaint alleged claims of “deprivation of his constitutional rights and retaliation against him for exercising his constitutionally protected rights, ” conspiracy to deprive him of his rights in violation of 42 U.S.C. § 1985, and retaliation for exercising his First Amendment rights. Along with the federal district judge, the Honorable Claire Cecchi, Plaintiff also named as defendants the “unknown U.S. Marshals” who arrested him; FBI Agent Mathew Hohman; Paul Safier, a senior inspector with the Marshal in New Jersey; Soo Song, an Assistant United States Attorney in the Western District of Pennsylvania; and the United States.
On April 21, 2021, a Report and Recommendation (“R&R”) was issued (ECF No. 14) recommending that the Complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B). The R&R concluded that Plaintiff could not use § 1983 to bring claims against the Defendants, who are all federal actors; his claim for First Amendment retaliation failed as a matter of law; that he failed to state a conspiracy claim under § 1985; and that several defendants have absolute immunity. Further, as stated in the R&R, Plaintiff's Complaint was an inappropriate attempt to raise challenges to his criminal case which already been raised and decided in that proceeding.
After the R&R was issued, Plaintiff filed an Amended Complaint and then a Second Amended Complaint (“SAC”), the latter of which is the operative document. Besides the original defendants, he added as party defendants the U.S. Marshal Service, the United States District Court for the District of New Jersey, and the United States Department of Justice.
B. The Second Amended Complaint
The forty-seven page SAC purports to assert claims a multitude of claims, including those alleged to arise under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, as well as many statutes, including 5 U.S.C. § 502 (the Administrative Procedures Act), 18 U.S.C. § 1964 (RICO), 42 U.S.C. §§ 2000bb to 2000bb-4 (RFRA), 42 U.S.C. §§ 2000cc to 2000cc-5 (RLUIPA), 28 U.S.C. § 1346 (FTCA), and N.J.S.A 10:6-2 (the New Jersey Civil Rights Act). Plaintiff seeks, among other things, monetary damages and injunctive and declaratory relief, as well as “quo warranto” relief.
Despite its length, however, the SAC includes a dearth of factual allegations that purport to be the basis for his claims. District Judge Cecchi purportedly instigated an investigation to target him. Defendant Safier is alleged to have targeted him for investigation and the Marshal Service and unknown Marshals allegedly “raided and arrested” him with “deadly force.” (SAC at 10.) Defendants Hohman, Song and the Department of Justice are alleged to be conspirators in targeting him for investigation and depriving him of his constitutional rights. Plaintiff describes the United States and the U.S. District Court of New Jersey as entities which employ some of the defendants. (Id.)
Plaintiff claims that the defendants targeted him before he was arrested by creating a crime from his petitions, discriminated against him by classifying him in “demeaning groups” because of his views, and took his words out of context and added words to create a crime. (SAC at 23-24.) See also SAC at 19-24, in which Plaintiff alleges his opposition to socialism and Marxist groups, and the government's duty to reject socialists and Marxists from holding office. He also cites a number of court decisions that he asserts support his First Amendment retaliation claim based on being targeted. (See SAC at 13-18.)
The majority of the remaining allegations and case citations in the SAC relate to issues regarding Plaintiff's continuing incarceration, the Speedy Trial Act and COVID-19 related matters. Notably, Plaintiff has commenced a separate lawsuit filed in this Court at Civ. A. No. 21-289 related to his continued incarceration, the Speedy Trial Act and COVID-19 concerns. He has also raised some of these issues in his criminal proceeding.
C. Standard of Review
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), courts are required to screen complaints at any time where, as is the case here, the plaintiff has been granted leave to proceed in forma pauperis. 28 U.S.C. § 1915(e)(2). The PLRA provides in relevant part that:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
i. is frivolous or malicious;
ii. fails to state a claim upon which relief may be granted; or iii. seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2). Thus, the Court must first screen the SAC to determine whether it should be dismissed.
D. Analysis
Plaintiff's claims arise out of events that occurred both before and after his arrest on the criminal charges that were brought against him in the United States District Court for the District of New Jersey and were later transferred to this Court. For many reasons, as discussed below, the SAC should be dismissed.
1. Post-Arrest Claims
With respect to events that took place after his arrest, Plaintiff, who is a pretrial detainee, alleges at some length that delays in his prosecution and the Court's standing orders related to COVID-19 violate the Speedy Trial Act as well as his Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, Fourteenth and Fifteenth Amendment rights. Plaintiff also contends that in denying his motion for release on bail in his criminal case, Judge Ranjan “did not recognize the whole scenario of the case, viewed words in isolation, left out exculpatory words (Brady material) and inserted words to support the government's viewpoint discrimination targeting only certain words and views of my speech, and changed my meaning of my speech, and filtered my speech.” (SAC at 16.) Together with monetary damages, he seeks habeas corpus relief and a series of writs, injunctions and orders related to his incarceration. Plaintiff has also made many of the same or similar allegations in the separate civil action he brought at Civ. A. No. 21-289.
A federal pretrial detainee cannot challenge the proceedings in his pending federal criminal case by filing a civil lawsuit, including a habeas corpus petition under 28 U.S.C. § 2241. Rather, a defendant who seeks to challenge some aspect of his criminal prosecution must assert such claims in the criminal case itself. “Where a defendant is awaiting trial, the appropriate vehicle for his constitutional rights are pretrial motions or the expedited appeal procedure provided by the Bail Reform Act, 18 U.S.C. § 3145(b), (c).” Whitmer v. Levi, 276 Fed.Appx. 217, 219 (3d Cir. 2008). See also Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995) (“It seems to us to go far afield to seek habeas corpus relief which could conceivably interfere with the trial judge's control of the criminal case pending before him.”)
Through his counsel, Plaintiff has already challenged his pending prosecution by filing two motions to dismiss the counts against him in the pending criminal case, see 21-cr-71 (D.N.J.), ECF Nos. 43, 44, both of which were denied by Judge Ranjan. See ECF Nos. 60, 61. He has also moved for and been denied pretrial release. Thus, Plaintiff has employed and may continue to employ the appropriate means in his criminal case by which to challenge his prosecution.
Simply put, Plaintiff cannot challenge these and other rulings in his pending criminal case under the guise of a civil lawsuit. Rather, any challenges to his criminal prosecution must be addressed in that proceeding. Thus, all of Plaintiff's claims that relate to his current incarceration and pending criminal proceedings must be dismissed. That includes claims related to the Speedy Trial Act, COVID-19 and the Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, Fourteenth and Fifteenth Amendments, as well as his claim for habeas corpus relief and all requests for writs, injunctions and orders related to his incarceration.
Even if Plaintiff had adequately stated a claim relating to his ongoing incarceration and prosecution, all the actions of Judge Cecchi, the “unknown U.S. Marshals” who arrested Plaintiff, FBI Agent Mathew Hohman, Paul Safier and the U.S. Marshal Service are alleged to have occurred prior to or during his arrest.
Plaintiff's claims about the events leading to his arrest are also without merit, as discussed below.
2. Section 1983 and Statutory Claims
The SAC asserts that certain of Plaintiff's claims are brought under 42 U.S.C. § 1983, which applies when a person has acted “under color of state law.” But the defendants here are the United States, a federal judge and various federal officials, agencies or employees. They cannot be sued under § 1983 because they act under federal law, not under color of state law. See Hindes v. F.D.I.C., 137 F.3d 148, 158 (3d Cir. 1998) (“federal agencies and officers are facially exempt from section 1983 liability inasmuch as in the normal course of events they act pursuant to federal law.”) See also Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001) (“It is well established that liability under § 1983 will not attach for actions taken under color of federal law.”) In addition, as the Court of Appeals has explained, “[t]he United States and other governmental entities are not persons within the meaning of Section 1983.” Polsky v. United States, 844 F.3d 170, 173 (3d Cir. 2016) (quoting Accardi v. United States, 435 F.2d 1239, 1241 (3d Cir. 1970)). For the same reason, he cannot bring a conspiracy claim under § 1983. See Davis v. Samuels, 962 F.3d 105, 115 (3d Cir. 2020) (“All of the defendants here, however, are alleged to be federal actors or to have acted under color of federal law, so the 1983 claim cannot stand.”)
The exception to this general principle is explained in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court established a direct cause of action under the United States Constitution against federal officials for violating federal constitutional rights. See Mack v. Yost, 968 F.3d 311, 314 (3d Cir. 2020). In Ziglar v. Abbasi, 137 S.Ct. 1843, 1848 (2017), however, the Supreme Court held that expansion of Bivens claims beyond the three specific contexts in which the Court had applied it is “disfavored.” These specific contexts were Fourth Amendment, Fifth Amendment and Eighth Amendment claims.
While Plaintiff states that he is bringing claims under the Fourth, Fifth and Eighth Amendments, he has failed to state a claim upon which relief may be granted related to any purported violation of his civil rights before or during his arrest. Although the SAC references all three of these amendments, Plaintiff has not connected them to the alleged events underlying this case. As established by the Supreme Court, “a pleading that offers ‘labels or conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Thus, merely reciting constitutional amendments does not state a claim upon which relief could be granted.
The Fourth Amendment assures the right against unreasonable searches and seizures. The sole allegation in the SAC that might relate to a civil rights claim is the bald allegation that unknown U.S. Marshals “raided and arrested” him with “deadly force.” These allegations do not state a Fourth Amendment claim. To maintain a § 1983 excessive force claim, “a plaintiff must establish: (1) injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Shepherd on behalf of Est. of Shepherd v. City of Shreveport, 920 F.3d 278, 283 (5th Cir. 2019) (citation omitted). Plaintiff was arrested, but even if his home were raided and the force used to arrest him was “deadly, ” he identifies no excessive force, injury or other allegedly unconstitutional conduct that could support a civil rights claim in connection with his arrest. As reflected in the docket of his criminal proceeding, a judge determined that there was probable cause for his arrest. He was then arrested. Thus, in the absence of any allegations that support a violation of Plaintiff's Fourth Amendment rights, his claim should be dismissed.
The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law . . . .” There are no allegations in the SAC that state a civil Fifth Amendment as to the named defendants. In one of the few decisions recognizing a Fifth Amendment Bivens claim, the Supreme Court permitted an employee of a member of Congress to bring a Bivens action alleging gender discrimination under that provision. See Davis v. Passman, 442 U.S. 228, 248-49 (1979). Plaintiff's allegations bear no resemblance to the scenario in that case and “even a modest extension [of Bivens] is still an extension.” Abbasi, 137 S.Ct. at 1864. See Vega v. United States, 881 F.3d 1146, 1152-55 (9th Cir. 2018) (declining to extend Bivens to federal inmate's procedural due process claim under the Fifth Amendment).
Because Plaintiff is a pretrial detainee, the Eighth Amendment does not apply to him. “[T]he Eighth Amendment's Cruel and Unusual Punishments Clause does not apply until ‘after sentence and conviction.'” Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (footnote omitted) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)). Thus, Plaintiff's Eighth Amendment claim also fails as a matter of law.
The only constitutional claim raised in the SAC that is relevant to the events leading to his arrest is Plaintiff's First Amendment claim. He asserts that he was arrested in retaliation for exercising his First Amendment right of free speech and expands on his allegations to contend that he suffered “viewpoint discrimination” by being placed in groups such as “tax protestors” and “serial filers.” He also describes his claims as including “Majority or reverse Discrimination” and “Dissenting and Demeaning Group Designation Discrimination.” (SAC at 18.) In the SAC, Plaintiff describes a lawsuit that he filed in the United States District Court for the District of New Jersey, No. 19-cv-8100, in which he claimed that “there are Socialist and Muslims in government positions that are pushing Socialism (equal to Marxism, Communism), it is an act to overthrow the Constitutional form of government and a violation of their Oath of Office and creating a Totalitarianism government.” (SAC at 19.) That case was dismissed on December 15, 2020 for lack of subject matter jurisdiction based on his lack of standing and is currently on appeal.
As held in Abbasi, expansion of Bivens claims beyond the three enumerated constitutional claims is disfavored. Indeed, even before Abbasi was decided, the Supreme Court noted that: “We have never held that Bivens extends to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (granting qualified immunity to Secret Service agents on retaliatory arrest claim). In Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017), the Third Circuit recognized that after Abbasi, its prior cases that assumed the validity of a Bivens claim in a First Amendment context were no longer valid and held that Bivens did not afford a remedy against airport security screeners who allegedly engaged in a retaliatory prosecution against a traveler who exercised First Amendment rights. Id. at 198, 209.
In the SAC, Plaintiff references decisions that predate Abassi and are no longer good law. He also asserts that Vanderklok is distinguishable because it involved non-government employees and “methodological stare decisis is not favored.” (SAC at 17-18.) However, the holding of Abassi, as recognized in Vanderklok, is that a plaintiff cannot utilize Bivens to assert claims other than those the Supreme Court has recognized, a holding that is binding on this Court.
Plaintiff cannot rely on Bivens to pursue a First Amendment claims against the defendants. Thus, his First Amendment claim should be dismissed.
Although Plaintiff also mentions § 1985 in the SAC, the Supreme Court has held that a conspiracy under that statute must be motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 829 (1983). See also Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (protestors who were blocking access to abortion clinics were not acting with animus against a “class” because the affected individuals could not be identified circularly as those being affected, nor was the protest directed at women as a class). As the Court of Appeals has summarized, § 1985 protects “victims of historically pervasive discrimination” and those with “immutable characteristics.” Magnum v. Archdiocese of Philadelphia, 253 Fed.Appx. 224, 230 (3d Cir. 2007). Thus, the statute could be invoked by a class of mentally impaired individuals, Lake v. Arnold, 112 F.3d 682, 687 (3d Cir. 1997), but not by a group of “tenant organizers, ” Carchman v. Korman Corp., 594 F.2d 354, 356 (3d Cir. 1979), or by minor children, “whose sole classifying characteristic (i.e., their minority) is not immutable, ” Magnum, 253 Fed.Appx. at 230. See also Farber v. City of Paterson, 440 F.3d 131, 142-43 (3d Cir. 2006) (political affiliation was not a protected class); Adams v. Teamsters Local 115, 214 Fed.Appx. 167, 168 n.7 (3d Cir. 2007) (demonstrators' § 1985(3) claim for conspiracy in retaliation for their exercise of their First Amendment right to free speech was foreclosed by the decision in Farber).
Plaintiff states that he faced “viewpoint discrimination” and was part of a majority or “dissenting and demeaning group.” Plaintiff's viewpoint and his political opinions do not constitute “immutable characteristics, ” however, nor does his claim of “majority discrimination” make him a victim of historically pervasive discrimination. As a result, he cannot state a conspiracy claim under § 1985(3) based on these beliefs.
Despite his litany of other constitutional and statutory provisions, Plaintiff has connected no amendments, statutes or legal doctrines to the events referenced in the SAC that occurred before or during his arrest. Moreover, as alleged in the SAC, his Fifth, Sixth, Eighth, Thirteenth, Fourteenth and Fifteenth Amendment claims relate to his current confinement and criminal prosecution, not to events during or before his arrests. See SAC at 41-42.
Finally, while Plaintiff also requests non-monetary relief by referring to “quo warranto, ” federal district courts have no original jurisdiction over quo warranto proceedings. See United States ex rel. State of Wis. v. First Fed. Sav. & Loan Ass'n, 248 F.2d 804, 809 (7th Cir. 1957).
3. Immunity
Even if Plaintiff could survive these challenges, many defendants he has named are immune from suit.
Plaintiff's claims against the district judge are meritless, as “judges are immune from suit under section 1983 for monetary damages arising from their judicial acts.” Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000) (citations omitted). While judges are not immune for any actions taken in a non-judicial capacity, or “in the complete absence of all jurisdiction, ” id. at 768-69, Plaintiff's claims do not relate to such acts. Although Plaintiff alleges that the district judge was acting “with a total lack of jurisdiction by violating my due process rights and violating [the judge's] oath of office, ” he alleges that the judge was biased and “failed to do her judicial duties” with respect to his civil cases before her. After he asked the U.S. Marshals to “question” the district judge, he was arrested. Regardless of Plaintiff's views about the judge's decisions or alleged bias towards him, the decisions rendered were made in a judicial capacity in cases in which the judge had jurisdiction. See Kaplan v. Miller, 653 Fed.Appx. 87, 89-90 & n.3 (3d Cir. 2016) Plaintiff also references 28 U.S.C. § 453, which governs the oath for justices and judges. But that “is also outside the jurisdiction of the court because that statute does not provide [plaintiff] with “an independent right to monetary damages.” Bobka v. United States, 133 Fed.Cl. 405, 411-12 (2017) (citation omitted). The same is true for 28 U.S.C. § 544, the oath of office for United States Attorneys, and 5 U.S.C. § 3331, the oath of office for government employees. See Williams v. County of Fresno, 2021 WL 2168402, at *6 (E.D. Cal. May 27, 2021).
The United States is also immune from suit. “It is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to suit.” United States v. Bein, 214 F.3d 408, 412 (3d Cir. 2000) (citing United States v. Mitchell, 463 U.S. 206, 212 (1983)). Neither the Constitution nor 28 U.S.C. § 1331, which provides subject matter jurisdiction for federal question cases, including civil rights actions, contains such a waiver. See Clinton County Comm'rs v. U.S. E.P.A., 116 F.3d 1018, 1021 (3d Cir. 1997); Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979). “Neither the United States nor its agencies have waived sovereign immunity for constitutional claims.” Mierzwa v. United States, 282 Fed.Appx. 973, 976-77 (3d Cir. 2008) (citing United States v. Testan, 424 U.S. 392, 400-02 (1976)). For the same reasons, the U.S. Marshal Service and the U.S. Department of Justice also have immunity.
Plaintiff also references 28 U.S.C. § 1332, which relates to subject matter jurisdiction based on diversity of citizenship. His complaint does not identify his citizenship or that of any other party.
Plaintiff has also asserted claims against Defendant Song, an assistant United States attorney, for her role in filing charges against him and otherwise conspiring to retaliate against him for “petitioning the government.” Because his claims against her relate to her conduct “in initiating a prosecution and in presenting the State's case, ” however, absolute immunity bars these claims. See Johnson v. Koehler, 733 Fed.Appx. 583, 585 (3d Cir. 2018) (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).
Finally, Plaintiff's claims against the United States District Court for the District of New Jersey are also unavailing as “federal courts are immune from such claims.” Davis v. City of Phila., 2019 WL 4034685, at *2 (E.D. Pa. Aug. 27, 2019).
E. Conclusion
The Third Circuit has held that a plaintiff who submits a complaint subject to dismissal for failure to state a claim should receive leave to amend unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Plaintiff has already amended his claims twice. It would be futile to allow any further amendment because as discussed in this Report, all claims related to Plaintiff's confinement and prosecution must be brought in his criminal proceedings. Further, Plaintiff's claims about pre-confinement activities are fundamentally flawed for multiple reasons, including the inapplicability of § 1983 to federal actors, the failure to state a Bivens claim and the immunity of most of the defendants.
For these reasons, it is respectfully recommended that the Second Amended Complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
If Plaintiff wishes to challenge this Report and Recommendation, he must seek review by the district judge by filing objections by June 24, 2021. Failure to file timely objections will waive the right of appeal.