“no private right of action is available” under § 3332(a)
How later courts described this case
- “no private right of action is available” under § 3332(a)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 NATHANIEL WASHINGTON, Case No. 1:24-cv-00254-HBK
12 Plaintiff, ORDER TO RANDOMLY ASSIGN A
DISTRICT JUDGE OTHER THAN JUDGE
13 v. THURSTON
14 JENNIFER L. THUSTON, COLETTE FINDINGS AND RECOMMENDATIONS TO
HUMPHREY, DAVID ZULFA, DONNY DISMISS CASE AS FRIVOLOUS1
15 YOUNGBLOOD,
(Doc. No. 1)
16 Defendants.
FOURTEEN-DAY OBJECTION PERIOD
17
18 Pending before the Court for screening under 28 U.S.C. § 1915A is Plaintiff Nathaniel
19 Washington’s Complaint filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1, “Complaint”). For the
20 reasons set forth below, the undersigned recommends the district court dismiss the Complaint as
21 frivolous and lacking an arguable basis in fact or law.
22 SCREENING REQUIREMENT
23 A plaintiff who commences an action while in prison is subject to the Prison Litigation
24 Reform Act (“PLRA”), which requires, inter alia, the court to screen a complaint that seeks relief
25 against a governmental entity, its officers, or its employees before directing service upon any
26 defendant. 28 U.S.C. § 1915A. This requires the court to identify any cognizable claims and
27
1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
28 (E.D. Cal. 2023).
1 dismiss the complaint, or any portion, if it is frivolous or malicious, if it fails to state a claim upon
2 which relief may be granted, or if it seeks monetary relief from a defendant who is immune from
3 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). “The purpose of § 1915A is to ‘ensure that the
4 targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v.
5 Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (internal citation omitted). A complaint is
6 “factual[ly] frivolous [ ]” if “the facts alleged rise to the level of the irrational or the wholly
7 incredible, whether or not there are judicially noticeable facts available to contradict them.”
8 Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). Section 1915 gives courts “the unusual power
9 to pierce the veil” of a Complaint like Plaintiff's and to “dismiss those claims whose factual
10 contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Clearly baseless
11 factual allegations include those “that are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” Denton, 504
12 U.S. at 32-33 (quoting Neitzke, 490 U.S. at 325, 327, 328).
13 At the screening stage, the court accepts the factual allegations in the complaint as true,
14 construes the complaint liberally, and resolves all doubts in the plaintiff’s favor. Jenkins v.
15 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir.
16 2003). The Court’s review is limited to the complaint, exhibits attached, materials incorporated
17 into the complaint by reference, and matters of which the court may take judicial notice. Petrie v.
18 Elec. Game Card, Inc., 761 F.3d 959, 966 (9th Cir. 2014); see also Fed. R. Civ. P. 10(c). A court
19 does not have to accept as true conclusory allegations, unreasonable inferences, or unwarranted
20 deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Critical
21 to evaluating a constitutional claim is whether it has an arguable legal and factual basis. See
22 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).
23 The Federal Rules of Civil Procedure require only that a complaint include “a short and
24 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).
25 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient
26 factual detail to allow the court to reasonably infer that each named defendant is liable for the
27 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service,
28 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not
1 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.
2 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not
3 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
4 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required
5 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.
6 2009) (internal quotation marks and citation omitted).
7 If an otherwise deficient pleading can be remedied by alleging other facts, a pro se litigant
8 is entitled to an opportunity to amend their complaint before dismissal of the action. See Lopez v.
9 Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d
10 245, 248 (9th Cir. 1995). However, it is not the role of the court to advise a pro se litigant on how
11 to cure the defects. Such advice “would undermine district judges’ role as impartial
12 decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131
13 n.13. Furthermore, the court in its discretion may deny leave to amend due to “undue delay, bad
14 faith or dilatory motive of the part of the movant, [or] repeated failure to cure deficiencies by
15 amendments previously allowed . . . .” Carvalho v. Equifax Info. Srvs., LLC, 629 F.3d 876, 892
16 (9th Cir. 2010).
17 BACKGROUND AND SUMMARY OF OPERATIVE PLEADING
18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, initiated this action by
19 filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). It is not clear where the
20 events in the Complaint took place. (See generally id.). The Complaint identifies the following
21 individuals as Defendants: (1) United States District Judge Jennifer Thurston; (2) Kern County
22 Superior Court Judge Colette Humphrey; (3) Kern County Superior Court Judge David Zulfa; (4)
23 Kern County Sheriff Donny Youngblood; (5) NSA Agent Steven (Last Name Unknown); (6)
24 Cynthia Zimmer, Prosecuting Attorney, Kern County District Attorney’s Office; (7) Valerie
25 Skidmore, Public Defender, Kern County Public Defender’s Office; (8) Felicia Nagle,
26 Prosecuting Attorney, Kern County District Attorney’s Office; (9) Julio Martinez, Probation
27 Officer, Kern County Probation Office; (10) Destry Jackson; (11) Nick Lackie, Prosecuting
28 Attorney, Kern County District Attorney’s Office; and (12) Erik Levig, Sheriff Deputy, Kern
1 County Sheriff’s Office. (Id. at 3-4). The Complaint alleges claims of “utilization of false
2 statutes” “conspiracy against rights,” retaliation, and “withholding exculpatory information.”
3 (See id. at 5-8). The following facts are presumed to be true at this stage of the screening process.
4 On an unspecified date, Plaintiff petitioned for a writ of habeas corpus on the grounds that
5 he was “conspired against by the superior court in case number: 1:24-cv-00035-JLT-SKO2.” (Id.
6 at 5). Judge Thurston dismissed the petition “with what [Plaintiff] believe[s] to be false federal
7 statutes.” (Id.). The Complaint further alleges that Judge Thurston “informally communicated
8 with other co-conspirators and allowed her judgment to be influenced by those who tamper with
9 witnesses and conspire against Defendants all-the-time.” (Id.). Under the injury section, Plaintiff
10 states, “I was raped in custody while I was unconscious” but does not allege any facts to indicate
11 this injury is related to any actions taken by Defendant Thurston. (Id.).
12 In a second claim, the Complaint asserts that Defendant Humphrey and other unspecified
13 co-conspirators “may have contacted Judge Thurston to influence her to dismiss a torture
14 conspiracy.” (Id. at 6). Liberally construed, the Complaint alleges a conspiracy involving
15 Defendants Thurston, Humphrey, and unspecified co-conspirators. Plaintiff checks the box next
16 to “Retaliation” but does not set forth any facts indicating that any Defendant retaliated against
17 him. Plaintiff also indicates under the Administrative Remedies for Claim 2 that he did not
18 attempt to exhaust his administrative remedies and that none were available, adding, “No way I
19 can report a federal crime to anyone from here.” (Id.).
20 In a third claim, the Complaint asserts:
21 Thurston knew of the conspiracy before her dismissal. She knows
22
2 The Court takes judicial notice of the fact that Washington v. Youngblood, E.D. Cal. Case No. 1:24-cv-
23 00035-JLT-SKO, a federal habeas petition filed by Plaintiff, was dismissed on February 14, 2024 based on
Plaintiff’s failure to exhaust his state court remedies. Federal Rule of Evidence 201 permits a court to take
24 judicial notice of facts that are “not subject to reasonable dispute” because they are either “generally
known within the trial court's territorial jurisdiction,” or they “can be accurately and readily determined
25 from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may
take judicial notice on its own or at the request of any party. Id. 201(c). Courts judicially notice other
26 court proceedings “if those proceedings have a direct relation to the matters at issue.” United States ex.
Rel. Robinson Rancheria Citizens Counsel v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citations
27 and internal quotation marks omitted); Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011). However,
a court may not take judicial notice of findings of facts from another case. Walker v. Woodford, 454 F.
28 Supp. 2d 1007, 1022 (S.D. Cal. 2006).
1 it’s a false imprisonment and torture conspiracy and a hate crime.
She is withholding corruption information from the Eastern District
2 by engaging in this conspiracy. Essentially, District Judge Jennifer
Thurston is conspiring to cover-up several conspiracies at once with
3 her dismissal of what may involve treason and sedition by county
employees and federal employees.
4
5 Id. at 7. Plaintiff again notes in the Administrative Remedies section that he did not attempt to
6 exhaust his administrative remedies and contends that none were available. (Id.).
7 As relief, Plaintiff seeks a grand jury, for “co-conspirators [to be] federally prosecuted for
8 this conspiracy,” appointment of a “lawful district judge” and for his fees to be waived. (Id. at 8).
9 APPLICABLE LAW AND ANALYSIS
10 A. Judicial Immunity
11 Judges enjoy immunity for “judicial acts” performed in the course of their work. Lund v.
12 Cowan, 5 F.4th 964, 971 (9th Cir. 2021), cert denied, 142 S.Ct. 900 (2022). As such, they cannot
13 be subject to liability for action taken within the jurisdiction of their courts. Schucker v.
14 Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam). Otherwise, “[s]ubjecting judges to
15 liability for the grievances of litigants would destroy that independence without which no
16 judiciary can be either respectable or useful.” Lund, 5 F.4th at 971 (citation omitted). To
17 determine whether an act is judicial, a court must consider whether “‘(1) the precise act is a
18 normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy
19 centered around a case then pending before the judge; and (4) the events at issue arose directly
20 and immediately out of a confrontation with the judge in his or her official capacity.’” Id.
21 (quoting Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)).
22 Here, Judge Thurston is protected by judicial immunity because Plaintiff challenges
23 conduct that constitutes a “judicial act.” Each of the three claims in Plaintiff’s Complaint centers
24 on Judge Thurston’s February 14, 2024 order dismissing his federal habeas petition. (See
25 generally Doc. No. 1; see Doc. No. 6, E.D. Cal. Case No. 1:24-cv-00035-JLT-SKO). As the
26 district judge presiding over this matter, she performed a “normal judicial function”—one that is
27 required by law—when she ruled on a Findings and Recommendations by the assigned magistrate
28 judge, recommending dismissal of the petition. 28 U.S.C. § 636(b)(1)(C) (requiring magistrate
1 judge to submit findings and recommendations on certain matters to the district judge) and 28
2 U.S.C. § 2254 (permitting “The Supreme Court, a justice thereof, a circuit judge, or a district
3 court [to] entertain an application for a writ of habeas corpus in behalf of a person in custody
4 . . .”). Because Plaintiff’s claims against Thurston arise out of her “normal judicial functions” of
5 reviewing habeas corpus petitions, the Court concludes that judicial immunity bars Plaintiff's
6 § 1983 claims against her.
7 B. Conspiracy
8 A civil conspiracy is a combination of two or more persons who, by some concerted
9 action, intend to accomplish some unlawful objective for the purpose of harming another, which
10 results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove
11 a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose
12 or common design and understanding, or a meeting of the minds in an unlawful agreement. Id.
13 Conclusory allegations of conspiracy are not sufficient to support a § 1983 conspiracy
14 claim. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam). Although an
15 “agreement or meeting of minds to violate [the plaintiff’s] constitutional rights must be
16 shown,” Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989), “[d]irect evidence
17 of improper motive or an agreement to violate a plaintiff’s constitutional rights will only rarely be
18 available. Instead, it will almost always be necessary to infer such agreements from
19 circumstantial evidence or the existence of joint action.” Mendocino Environmental Center v.
20 Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999). Thus, “an agreement need not be overt,
21 and may be inferred on the basis of circumstantial evidence such as the actions of the
22 defendants.” Id at 1301.
23 Here, Plaintiff’s conspiracy claims are wholly speculative, conclusory, facially irrational
24 and incredible. The Complaint is devoid of any facts supporting a claim of conspiracy, but rather
25 consists of Plaintiff’s conjecture and speculation: “I have reason to believe Judge Thurston . . .
26 may have acted in conspiracy with the other Defendants . . . I think she informally communicated
27 with other co-conspirators” (Doc. No. 1 at 5) (emphasis added); “Humphrey . . . along with other
28 co-conspirators . . . may have contacted Judge Thurston to influence her . . . I believe Thurston
1 allowed herself to be sucked in a conspiracy.” (Id. at 6) (emphasis added). Indeed, such
2 allegations, in addition to being wholly conclusory and insufficient to support a § 1983 claim, are
3 completely frivolous. See Bonilla v. Unknown, 2019 WL 4849159, at *1 (S.D. Cal. Oct. 1, 2019)
4 (dismissing as frivolous Plaintiff's attempt to invoke federal jurisdiction pursuant to three criminal
5 statutes in an effort to “challenge the validity of his Alameda County criminal judgment and death
6 sentence, on grounds that he has been the subject of a criminal conspiracy among various judges
7 to “frame [him] for a crime that [he] never committed.”).
8 C. Claims Against Remaining Defendants
9 Of the remaining Defendants listed in Plaintiff’s Complaint, only one, Judge Colette
10 Murphy, is even mentioned in the body of the Complaint. As to her, she is mentioned only in
11 passing, stating, “Humphrey (Judge Colette Humphrey) along with other co-conspirators,--they
12 may have contacted Judge Thurston to influence her to dismiss a torture conspiracy.” (Doc. No. 1
13 at 6). For reasons noted above, the torture conspiracy claim against Humphrey and others fails to
14 state a claim and is frivolous. See Suess v. Obama, 2017 WL 1371289, at *2 (C.D. Cal. Mar. 10,
15 2017) (finding complaint frivolous that alleged conspiracy between President, CIA, and FBI to
16 torment plaintiff over six year period); Sierra v. Moon, 2012 WL 423483, at *2 (E.D. Cal. Feb. 8,
17 2012)(dismissing complaint as frivolous that alleged conspiracy by various defendants and ex-
18 military and CIA to defraud plaintiffs' interests and murder him).
19 As to the remaining 10 Defendants, several would likely be entitled to either judicial or
20 prosecutorial immunity, and one does not appear to be a state actor. In any event, none of them
21 are mentioned anywhere in the Complaint. To be plausible and survive screening, a complaint
22 must include sufficient factual detail to allow the court to reasonably infer that each named
23 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. The Complaint simply
24 fails to allege any facts as to any of these 10 Defendants to support a constitutional claim against
25 them. Thus, the Court finds no claim stated as to these eleven Defendants.
26 D. Plaintiff’s Requested Relief
27 As relief, Plaintiff asks this Court to impanel a grand jury and order “co-conspirators
28 federally prosecuted for this conspiracy.” (Doc. No. 1 at 8). Plaintiff does not cite any authority
1 for his request that the Court impanel a grand jury. The impaneling of grand juries by federal
2 courts is governed by 18 U.S.C. §§ 3331 and 3332. The later provision states:
3 It shall be the duty of each such grand jury impaneled within any
judicial district to inquire into offenses against the criminal laws of
4 the United States alleged to have been committed within that district.
Such alleged offenses may be brought to the attention of the grand
5 jury by the court or by any attorney appearing on behalf of the United
States for the presentation of evidence. Any such attorney receiving
6 information concerning such an alleged offense from any other
person shall, if requested by such other person, inform the grand jury
7 of such alleged offense, the identity of such other person, and such
attorney’s action or recommendation.
8
9 18 U.S.C. 3332(a). Prosecutorial decisions and presentment of evidence to a grand jury lies with
10 the United States Attorney’s Office and not with the courts. See Brown v. Gomez, 2001 WL
11 985623, at *1 (9th Cir. Aug. 28, 2001) (“The district court did not abuse its discretion in failing to
12 impanel a grand jury or by failing to present Brown’s proposed complaint to a grand jury, because
13 pursuit of indictments and prosecutions is within the exclusive discretion of the United States
14 Attorney.”). No private right of action is available under § 3332(a) that would authorize the relief
15 sought in Plaintiff’s Complaint. Id.; see also Norman v. U.S. Atty Gen. for W.D. Tex., 2024 WL
16 64769, 2 (5th Cir. Jan. 5, 2024) (affirming rejection of mandamus relief under § 3332 because “a
17 private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
18 another”); Morales v. U.S. Dist. Ct., 580 F. App’x 881, 886 (11th Cir. 2014); Mowish v. Gentry,
19 156 F.3d 1231, *2 (6th Cir. July 31, 1998) (unpublished table opinion); Hantzis v. Grantland, 772
20 F. Supp. 2d 1, 3 (D. D.C. 2009) (“no private right of action is available” under § 3332(a)); Lundy
21 v. United States, 2007 WL 4556702, at *2 (C.D. Ill. Dec. 21, 2007), corrected on other grounds,
22 2008 WL 2510172 (C.D. Ill. June 19, 2008) (Ҥ 3332(a) does not confer a private right of
23 action”); Bryant v. Fienberg, 2006 WL 2924744, at *2 (E.D. Mich. Oct. 10, 2006) (the “plaintiff
24 does not have a private cause of action under 18 U.S.C. § 3332(a), the Special Grand Jury
25 statute”); Arnett v. Unknown, 2011 WL 4346329, at *6 (C.D. Cal. Aug. 23, 2011) (“Section
26 3332(a) contains no ‘clear and unambiguous’ statement conferring a private right of action on an
27 individual to present evidence to a special grand jury or to compel a United States Attorney to do
28 so”); In re Schleeper, 1997 WL 811797, *1 (D.C. Cir. 1997) (§ 3332 “contains no provision
1 requiring the district court to refer a private complaint to the grand jury”); Huber Heights
2 Veterans Club v. Bowman, 2022 WL 11736539, *1 (S.D. Ohio Oct. 20, 2022) (same).
3 Claims that do not provide a private right of action may be considered frivolous. See
4 Taylor v. Kolbaba, 909 F.2d 1489, *2 (9th Cir. 1990) (unpublished table opinion) (deciding that
5 the entirety of a pro se plaintiff’s original complaint which included claims that provided no
6 private right of action was frivolous and could not be cured by amendment); Self v. Chase Bank,
7 N.A., 2011 WL 3813106, at *5 (E.D. Cal. Aug. 25, 2011) (holding that a pro se plaintiff’s claims
8 that provided no private right of action were frivolous when “precedent clearly forecloses private
9 rights of action on such claims.”); Gilbert v. U.S. Atty for the State of Calif., 2018 WL 11252687,
10 *2 (C.D. Cal. Dec. 7, 2018) (denying in forma pauperis application and dismissing complaint
11 brought under criminal statute with no private right of action as frivolous).
12 Based on the case law discussed above, including that conferring judicial immunity on
13 Defendant Thurston, the Court finds that Plaintiff's Complaint is based on indisputably meritless
14 legal theories and lacks an arguable basis in law or fact. See Neitzke, 490 U.S. at 325.
15 Consequently, the undersigned recommends Plaintiff's Complaint be dismissed without prejudice.
16 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be freely
17 given when justice so requires. Fed. R. Civ. P. 15(a)(2). The Court is mindful that it must
18 liberally construe the inartful pleading of pro se litigants. In this instance, the Court finds no
19 amendment could cure the deficiencies and frivolous nature of Plaintiff’s petition and therefore,
20 less drastic alternatives to dismissal are unnecessary. See Nunes v. Ashcroft, 375 F.3d 805, 808
21 (9th Cir. 2004); see also Lopez v. Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (en banc)
22 (because plaintiff’s claims are frivolous , “there is by definition no merit to the underlying action
23 and so no reason to grant leave to amend.”). Accordingly, the Court finds that granting leave to
24 amend would be futile and recommends this action be dismissed without prejudice and without
25 leave to amend.
26 ACCORDINGLY, it is ORDERED:
27 The Clerk of Court randomly assign this case to a district judge other than Judge Jennifer
28 L. Thurston for consideration of these Findings and Recommendations.
1 It is further RECOMMENDED:
2 The Complaint (Doc. No. 1) be dismissed under § 1915A as frivolous and for failing to
3 | state a claim and further leave be denied.
4 NOTICE TO PARTIES
5 These Findings and Recommendations will be submitted to the United States District
6 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days
7 | after being served with a copy of these Findings and Recommendations, a party may file written
8 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned,
9 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge
10 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s
11 | failure to file objections within the specified time may result in the waiver of certain rights on
12 || appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).
13
"| Dated: __April 19, 2024 Mihaw. Wh. foareh Zaskth
15 HELENA M. BARCH-KUCHTA
6 UNITED STATES MAGISTRATE JUDGE
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