MARTINEZ v. CREANY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUSTIN JUAN DE LA CRUZ MARTINEZ, )

) No. 23-cv-2009

Plaintiff, )

)

v. ) Judge Robert J. Colville

)

JUDGE TIMOTHY CREANY, )

)

Defendant. )

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court is a Motion to Proceed in District Court Without Prepaying Fees or Costs

(ECF No. 1) filed by Plaintiff in the above-captioned matter. This case represents one of thirteen

cases filed by Plaintiff that are currently pending before the undersigned. This matter involves

Plaintiff’s criminal prosecution before Defendant Judge Timothy Creany in the Westmoreland

County Court of Common Pleas for charges of intercepting communications in violation of 18

Pa.C.S. § 5703(1); disclosing intercepted communications in violation of 18 Pa.C.S. § 5703(2);

and use of intercepted communications in violation of 18 Pa.C.S. § 5703(3). Plaintiff was found

guilty of each of these third-degree felonies by a jury on July 12, 2023. This case is not the only

suit that Plaintiff has filed against Judge Creany relating to Plaintiff’s criminal case. See Docket

Nos. 2:23-cv-1130; 2:23-cv-1407; and 2:23-cv-2086.

Plaintiff attempts to bring claims against Judge Creany pursuant to 42 U.S.C. § 1983 and

18 U.S.C. § 241.1 The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331. For the

1 To the extent Plaintiff attempts to assert a claim pursuant to the federal criminal code, there is no private right of

action under Section 241. See Walthour v. Herron, No. CIV.A.10-01495, 2010 WL 1877704, at *3 (E.D. Pa. May 6,

2010) (“In this case, Plaintiff asserts a violation of his rights under the following federal criminal statutes: 18 U.S.C.

§§ 241, 242, 245, 247, 371 and 1951. These statutes do not provide a private right of action under which Plaintiff

may sue.” (citation omitted)).

reasons that follow, the Court will grant Plaintiff’s Motion to Proceed in Forma Pauperis, but will

dismiss Plaintiff’s Complaint with prejudice pursuant to 28 U.S.C. §1915(e) for failure to state a

claim and because it is frivolous.

I. Background

While the Court is required to liberally construe Plaintiff’s pleadings, the Court notes, as it

has in all of Plaintiff’s cases, that Plaintiff’s manner of pleading results in a complaint that is,

respectfully, difficult to follow at times, if not unintelligible. That said, the Court outlines the

relevant allegations in the Complaint as follows:

As noted, Judge Creany currently presides over a criminal case in which Plaintiff is the

defendant. Plaintiff, as he has in his other actions, again takes issue with the rulings and decisions

issued by Judge Creany in Plaintiff’s criminal case. See generally ECF No. 1-1 “Statement of

Case.” More specifically, Plaintiff asserts that Judge Creany held a hearing on November 6, 2023

respecting a motion for a new trial and a motion asserting malicious prosecution filed by Plaintiff

in his criminal matter. Id. at ¶¶ 1-3. Plaintiff asserts that, while hearing argument and reviewing

evidence during the hearing, Judge Creany indicated agreement with, and was more favorable to,

Assistant District Attorney Anthony Iannamorelli. Id. at ¶ 4. During that hearing, Judge Creany

also declined to re-hear arguments Plaintiff had previously advanced during an August 9, 2022

hearing. Id. at ¶ 5.2 Plaintiff again argues, as he has in other actions, that Judge Creany was “not

fair” in Plaintiff’s criminal case because Judge Creany failed to incorporate Plaintiff’s suggested

voir dire questions, jury instructions, and verdict slip language. Id. at ¶¶ 6-8. Plaintiff further

argues that Judge Creany made incorrect rulings during the course of Plaintiff’s trial. Id. Plaintiff

asserts that Judge Creany maintains bias against Plaintiff, and that he believes Judge Creany will

2 Plaintiff’s paragraphs are misnumbered. In citing to the Complaint, the Court will number the paragraphs

sequentially, as though Plaintiff had not misnumbered the paragraphs in the Complaint.

deny Plaintiff’s motion seeking a new trial and his motion asserting malicious prosecution in an

effort to violate Plaintiff’s rights under the Constitution. Id. at ¶ 9-11.

Plaintiff, as he did in his action at 2:23-cv-1130, seeks injunctive relief requiring that Judge

Creany recuse from Plaintiff’s criminal case, a stay of that case, and the assignment of a new judge.

ECF No. 6 “Prayers for Relief” at ¶ 1-7.

II. Legal Standard

Pursuant to 28 U.S.C. §1915(a), Plaintiff requested and has been granted leave to proceed

in forma pauperis. Thus, his allegations must be reviewed in accordance with the directives

provided in 28 U.S.C. §1915(e). Section 1915(e)(2), as amended, requires the federal courts to

review complaints filed by persons3 who are proceeding in forma pauperis and to dismiss, at any

time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted,

or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.

§1915(e)(2)(B).

“[A] complaint…is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Thus, under §1915(e)(2)(B), courts are “authorized

to dismiss a claim as frivolous where ‘it is based on an indisputable meritless legal theory or where

the factual contentions are clearly baseless.’” O’Neal v. Remus, No. 09-14661, 2010 WL 1463011,

at *1 (E.D. Mich. Mar. 17, 2010) (quoting Price v. Heyrman, No. 06-C-632, 2007 WL 188971, at

3 Although the Third Circuit has not ruled on the issue, several district courts in the Third Circuit have considered the

question of whether this revised in forma pauperis statute applies only to prisoners and have concluded that it does

not. Leatherman v. Obama, C.A. No. 12-1486, 2012 WL 5398912 (W.D. Pa. 2012) (Fisher, J.), adopting R&R 2012

WL 5398856 (W.D. Pa. October 22, 2012); Harrison v. Shapiro, No, 97–2133, 1997 WL 197950, at * 1 (E.D.

Pa.1997); Jones v. North Atlantic Treaty Organization, No. 98–1185, 1998 WL 136511, at *1 n. 1 (E.D. Pa.1998);

McAllen v. Attic Away From Home, No. 00–941, 2000 WL 1752618, at *2 n. 7 (D. Del. 2000). Each of these courts

has found the mention of the word “prisoner” to be a typographical error, and that Congress meant the statute to read

“person.” The Court finds this reasoning to be persuasive. See also, Anyanwutaku v. Moore, 151 F.3d 1053 (D.C.

Cir.1998); Mitchell v. Farcass, 112 F.3d 1483, 1484 (11th Cir.1997); Powell v. Hoover, 956 F.Supp. 564, 568 (M.D.

Pa.1997).

*1 (E.D. Wis. Jan. 22, 2007)).4 The United States District Court for the Middle District of

Pennsylvania has aptly explained and summarized:

The term “frivolous,” as used in § 1915(e)(2), includes not only inarguable legal

conclusions, but also fanciful factual allegations. [Neitzke, 490 U.S. at 325]. As

such, courts are afforded authority to dismiss those claims whose factual

contentions are clearly baseless. Id.; Denton v. Hernandez, 504 U.S. 25, 32–33,

112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Within the Third Circuit, courts have

found that allegations which are considered fanciful, fantastic, and delusional are

to be dismissed as frivolous. See Barnes v. Mercer County Court House, 2007 WL

16525335, *6 (D.N.J.) (dismissing claim that food served to inmates at correctional

facility was hazardous to human health); Armstead v. Briggs, 2004 WL 339647

(D.Del.) (dismissing claim requesting that the court set up an appointment for the

plaintiff with President George W. Bush so that she could tell him that she had filed

a lawsuit seeking his permanent appointment as the President of the United States);

Noble v. Becker, 2004 WL 96744 (D.Del.) (claims that government officials and

others had engaged in a vast conspiracy to violate his constitutional rights were

delusional); Williams v. Werster, 1994 WL 313111 (E.D.Pa.) (plaintiff’s claim that

he had uncovered evidence of a conspiracy by the former mayor to commit sabotage

and espionage in order to establish ecclesiastical law and in some way interfere

with U.S. commerce were fanciful, fantastic, or delusional); Robinson v. Love, 155

F.R.D. 535 (E.D.Pa.1994) (where plaintiff alleged that he was subjected to

witchcraft and attempts to poison him with cyanide, the allegations were fanciful,

fantastic or delusional).

Pavalone v. Bush, No. CIV.A. 3:11-1620, 2012 WL 1569614, at *1 (M.D. Pa. Mar. 27, 2012),

report and recommendation adopted, No. 3:11-CV-1620, 2012 WL 1569791 (M.D. Pa. May 3,

2012).

In determining whether a complaint fails to state a claim upon which relief may be granted

for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D’Agostino v. CECOM

RDEC, 436 F. App’x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege

4 Dismissal under Section 1915(e)(2) is “often made sua sponte prior to the issuance of process, so as to spare

prospective defendants the inconvenience and expense of answering [frivolous] complaints[,]” Neitzke, 490 U.S. at

324, or complaints which fail to state a claim on which relief may be granted.

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson,

355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). “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.” Iqbal, 556 U.S.

at 678 (citing Twombly, 550 U.S. at 556). The United States Court of Appeals for the Third Circuit

has expounded on this standard in light of its decision in Phillips v. County of Allegheny, 515 F.3d

224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the Supreme Court’s

decision in Iqbal:

After Iqbal, it is clear that conclusory or “bare-bones” allegations

will no longer survive a motion to dismiss: “threadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. To prevent

dismissal, all civil complaints must now set out “sufficient factual

matter” to show that the claim is facially plausible. This then

“allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Id. at 1948. The Supreme

Court’s ruling in Iqbal emphasizes that a plaintiff must show that

the allegations of his or her complaints are plausible. See id. at

1949-50; see also Twombly, 505 U.S. at 555, & n. 3.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In making this determination, the

court must accept as true all allegations of the complaint and all reasonable factual inferences must

be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc.,

764 F.2d 939, 944 (3d Cir. 1985). “To the extent that a complaint filed in forma pauperis which

fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel

dismissal.” Neitzke, 490 U.S. at 328 (footnote omitted).

“If a plaintiff requests leave to amend a complaint vulnerable to dismissal before a

responsive pleading is filed” in a civil rights case, a court must permit amendment unless it would

be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This

is also true where a plaintiff does not request leave to amend. See Grayson, 293 F.3d at 108

(“When a plaintiff does not seek leave to amend a deficient complaint after a defendant moves to

dismiss it, the court must inform the plaintiff that he has leave to amend within a set period of

time, unless amendment would be inequitable or futile.”).

The Court again notes that Plaintiff is proceeding pro se and, as such, he is entitled to liberal

construction of his submissions in federal court. This means that the Court must liberally construe

the factual allegations of the complaint because pro se pleadings, “however inartfully pleaded,

must be held to less stringent standards than formal pleadings drafted by lawyers.” Erikson v.

Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520

(1972). In addition, the court should “‘apply the applicable law, irrespective of whether a pro se

litigant has mentioned it by name.’” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting

Holley v. Dep’t of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). However, “pro se

litigants still must allege sufficient facts in their complaints to support a claim.” Mala v Crown

Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Further, pro se litigants are not free to ignore

the Federal Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL

3325439, *1 (M.D. Pa. Oct. 24, 2006).

III. Discussion

The Court has already ruled in Plaintiff’s case at Docket No. 2:23-cv-1130 that Plaintiff

cannot maintain an action against Judge Creany arising out of Judge Creany’s rulings in Plaintiff’s

criminal case. The Court incorporates that discussion herein by reference. Plaintiff’s Complaint

in this matter presents more of the same, that is, unsupported assertions of a “conspiracy” and

challenges to Judge Creany’s rulings in Plaintiff’s criminal action. In short, and as explained in

greater detail in the Court’s Memorandum Opinion at Docket No. 2:23-cv-1130 entered

contemporaneously herewith, Younger abstention applies, Plaintiff’s claims are barred by Heck v.

Humphrey, and Judge Creany is entitled to judicial immunity. Accordingly, Plaintiff also fails to

state a claim against Judge Creany in this action.

Amendment as to any of Plaintiff’s claims would be futile for the reasons stated herein. It

also bears noting that Plaintiff has filed thirteen cases in this District, and has failed to state a claim

in any of his actions. In certain of those actions, he was permitted to file amended complaints, and

still failed to set forth allegations to support a single cause of action. As noted, this is Plaintiff’s

third complaint asserting claims based upon Plaintiff’s criminal case before Judge Creany, and

Plaintiff still has not come close to stating a cognizable claim. The same further suggests to this

Court that permitting amendment would be futile, and Plaintiff’s Complaint in this matter will thus

be dismissed with prejudice

IV. Conclusion

As discussed above, Plaintiff’s Complaint is baseless and frivolous, and will be dismissed

as such pursuant to Section 1915(e). An appropriate Order of Court follows.

BY THE COURT:

/s/Robert J. Colville______

Robert J. Colville

United States District Judge

cc: All counsel of record

Justin Juan De La Cruz Martinez

502 N 12th Ave

Albany, IL 61230