“[P]laintiffs’ reliance on 18 U.S.C. § 241 … fails as a matter of law since th[is] 15 federal criminal statute[] do[es] not create a private right of action.”
How later courts described this case
- “[P]laintiffs’ reliance on 18 U.S.C. § 241 … fails as a matter of law since th[is] 15 federal criminal statute[] do[es] not create a private right of action.”
- holding 18 U.S.C. § 241 provides no “affirmative relief” for 17 prisoner challenging validity of sentence
- applying § 1915 review to non-prisoner IFP filers
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
6 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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WILLIAM MCKOBY, CASE NO. C25-1946-KKE
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Plaintiff(s), ORDER DECLINING TO ISSUE
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v. SUMMONS PENDING AMENDMENT OF
THE COMPLAINT
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ELITE PUBLISHER, et al.,
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Defendant(s).
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This matter comes before the Court on sua sponte review of Plaintiff’s complaint under 28
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U.S.C. § 1915. Plaintiff filed a nearly identical action earlier this year against Defendants Elite
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Publisher (“Elite”) and Smart Tri Tech based on the same events alleged in this action. See
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McKoby v. Elite Publisher (“McKoby I”), No. C25-0821-KKE, 2025 WL 1568190 (W.D. Wash.
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June 3, 2025). In both cases, Plaintiff applied for, and was granted, permission to proceed in forma
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pauperis (“IFP”). Id. at *1; Dkt. No. 5. As in McKoby I, the Court has reviewed Plaintiff’s
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complaint (Dkt. No. 6) under 28 U.S.C. § 1915(e)(2) and, once again, finds that Plaintiff has failed
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to state a claim upon which relief can be granted. The Court will provide Plaintiff a final
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opportunity to file an amended complaint by November 12, 2025, to cure the deficiencies
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described below.
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A complaint filed by any person seeking to proceed IFP pursuant to 28 U.S.C. § 1915(a) is
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subject to sua sponte review and dismissal by the Court “at any time” to the extent it is frivolous,
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1 malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a
2 defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845,
3 845 (9th Cir. 2001) (applying § 1915 review to non-prisoner IFP filers). Dismissal is proper when
4 there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under
5 a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
6 A complaint must contain factual allegations sufficient “to raise a right to relief above the
7 speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Federal Rule of Civil
8 Procedure 8(a) requires that a pleading contain “a short and plain statement of the grounds for the
9 court’s jurisdiction” and “a short and plain statement of the claim showing that the pleader is
10 entitled to relief[.]” Although Rule 8 “does not require ‘detailed factual allegations,’ [] it demands
11 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
12 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A plaintiff must “plead[] factual content
13 that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
14 alleged.” Id.
15 Plaintiff’s complaint alleges he paid Elite $2,399 dollars to publish his book. Dkt. No. 6
16 at 1–2. Elite allegedly agreed to provide copy editing and printing services and to distribute the
17 book to various bookstores. Id. Although the details are unclear from his complaint, Plaintiff was
18 ultimately dissatisfied with Elite’s services. He alleges he “was continually having to correct
19 identical … errors committed by” Elite and that, despite being told he would receive addresses and
20 phone numbers for Elite’s “Corporate management[,]” Elite instead sent “false corporate
21 information and addresses with phone numbers equaling dead-end communications.” Id. at 6.
22 Elite allegedly told Plaintiff his book would be “completed within two months[,]” but, at time he
23 first filed his complaint, the process had taken approximately “ten months[.]” Id. at 1, 8. Plaintiff
24 hired a lawyer to send a demand letter, which states: “Contrary to contractual provisions, [Elite]
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attempted to charge extra for [its] errors.”1 Dkt. No. 6-1 at 2. Plaintiff appears to assert claims
2 for conspiracy against rights under 18 U.S.C. § 241; violation of the Americans with Disabilities
3 Act (“ADA”), 42 U.S.C. § 12101 et seq.; and, possibly, mail fraud under 18 U.S.C § 1341.
4 Plaintiff’s complaint in McKoby I was nearly, if not entirely, identical. In McKoby I, as in
5 this case, Plaintiff filed an application to proceed IFP, which the Court granted. Id. at *1. The
6 Court then reviewed the complaint under 28 U.S.C. § 1915, found that it failed to state a claim
7 upon which relief could be granted, and dismissed it without prejudice and with leave to amend.
8 Id. at *1–2. After Plaintiff failed to file an amended complaint and failed to respond to an order
9 to show cause, the Court dismissed McKoby I without prejudice for failure to prosecute. See
10 McKoby I, No. C-25-0821-KKE, Dkt. Nos. 7, 8, 9.
11 As in McKoby I, Plaintiff’s near-carbon-copy complaint in this case fails to state a claim
12 on which relief may be granted. To begin, 18 U.S.C. § 241, conspiracy against rights, is a federal
13 criminal statute that creates no private right of action. Davis v. Sarles, 134 F. Supp. 3d 223, 228
14 (D.D.C. 2015) (“[P]laintiffs’ reliance on 18 U.S.C. § 241 … fails as a matter of law since th[is]
15 federal criminal statute[] do[es] not create a private right of action.”); Peabody v. United States,
16 394 F.2d 175, 177 (9th Cir. 1968) (holding 18 U.S.C. § 241 provides no “affirmative relief” for
17 prisoner challenging validity of sentence). In other words, only government prosecutors—not
18 private individuals, like Plaintiff—may bring actions under the statute. Similarly, “to the extent
19 Plaintiff alleges Defendants violated the Mail Fraud Act, 18 U.S.C. § 1341, the Mail Fraud Act is
20 a criminal statute and ‘does not create a private right of action[.]’” Chester v. United States Dep’t
21 of State, No. 3:23-cv-05367-DGE, 2024 WL 2922801, at *3 (W.D. Wash. June 10, 2024).
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1 The demand letter is to Elite and Smart Tri Tech. Dkt. No. 6-1 at 2. But the complaint does not indicate what role
24 Smart Tri Tech has in this case or how it participated in Plaintiff’s publishing arrangement with Elite.
1 Plaintiff’s complaint also fails to plead facts sufficient to raise his ADA claim “above the
2 speculative level[.]” Twombly, 550 U.S. at 555. Although not clearly identified in the complaint,
3 his claim most closely resembles a claim for disability discrimination in a place of public
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accommodation under Title III of the ADA.2 See id. § 12182(a). “To prevail on a Title III
5 discrimination claim, the plaintiff must show that (1) [he] is disabled within the meaning of the
6 ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public
7 accommodation; and (3) the plaintiff was denied public accommodations by the defendant because
8 of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
9 Even assuming Plaintiff has a disability within the meaning of the ADA and Elite is a place
10 of public accommodation, Plaintiff fails to plead facts suggesting he was denied full enjoyment of
11 a public accommodation because of his disability. His complaint merely alleges he was
12 dissatisfied by Elite’s services for reasons that have no apparent connection to his alleged
13 disability. For instance, Plaintiff pleads no facts suggesting Elite’s editing errors, its sharing of
14 “false corporate information and addresses[,]” or the delay in completing Plaintiff’s book have
15 been due to a failure to accommodate Plaintiff’s disability or are in any way related to his disability.
16 Indeed, the complaint does not tie any of Elite’s actions to Plaintiff’s disability except through the
17 conclusory assertion that Elite “executed continual discriminations” against him. Such conclusory
18 statements without factual support are insufficient to state a claim for relief. Iqbal, 556 U.S. at
19 681.
20 Further, as explained in McKoby I, to the extent Plaintiff intends to assert a breach of
21 contract claim under Washington law, Plaintiff must establish this Court’s subject matter
22 jurisdiction over such state law claims, either by pleading diversity jurisdiction (28 U.S.C. § 1332)
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2 Plaintiff does not allege that he suffered discrimination in regard to either employment or public services. See 42
24 U.S.C. §§ 12112(a), 12132.
1 or supplemental jurisdiction (28 U.S.C. § 1367). Plaintiff has not pled either basis for the Court’s
2 jurisdiction over his breach of contract claim. Fed. R. Civ. P. 8(a) (requiring a “short and plain
3 statement of the grounds for the court’s jurisdiction”).
4 Because Plaintiff has no private right of action under 18 U.S.C. §§ 241 or 1341 and his
5 complaint fails to allege facts suggesting he was denied public accommodation because of a
6 disability, the Court cannot find that Plaintiff has stated valid claims upon which this Court can
7 grant relief. The Court therefore declines to issue summons at this time and ORDERS
8 Plaintiff to file an amended complaint, no later than November 12, 2025. An amended
9 complaint will completely replace the original complaint, and Plaintiff must articulate both the
10 legal and factual bases supporting his claims. If Plaintiff fails to file an amended complaint
11 addressing the issues identified in this order, the Court may dismiss this action for failure to state
12 a claim or for failure to comply with a court order. As Plaintiff has now had more than one
13 opportunity to amend the shortcomings in his complaint, dismissal may be with prejudice.
14 The clerk shall mail Plaintiff a copy of this order along with a copy of the Pro Se Guide to
15 Filing Your Lawsuit in Federal Court.
16 Dated this 28th day of October, 2025.
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A
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Kymberly K. Evanson
19 United S tates District Judge
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