Myrland v. Gillmor et al

Filing 6

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by JUDGE LESLIE E. KOBAYASHI on 05/04/2018. (eps, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants served by First Class Mail to: Donald R. Myrland; c/o 2308 N. 145th Street; Shoreline, WA 98133 the addressee of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DAVID R. MYRLAND,

)
)
Plaintiff,
)
)
vs.
)
)
HELEN GILLMOR; REBECCA ANN
)
PERMUTTER; DEREK KIM,
)
)
Defendants.
)
_____________________________ )

CIVIL 18-00120 LEK-RLP

ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii)
Before the Court is pro se Plaintiff David R. Myrland’s
(“Plaintiff”) Verified Criminal Complaint (“Complaint”), filed
March 27, 20178.

[Dkt. no. 1.]

Plaintiff alleges Senior United

States District Judge Helen Gillmor, Assistant United States
Attorney Rebecca Ann Perlmutter, and Probation Services Officer
Derek Kim (“Defendants”) have conspired to kidnap and confine
Royal Lamarr Hardy at the Federal Detention Center in Honolulu,
Hawai`i, in violation of 18 U.S.C. §§ 241 and 1201.

Upon

screening, the Complaint is hereby dismissed without leave to
amend.
BACKGROUND
On April 14, 2002, an Information was filed in United
States v. Royal Lamarr Hardy, CR 02-00133(01) HG (“Hardy”).
Hardy was convicted of two counts of conspiracy to defraud the
United States, in violation of 18 U.S.C. § 371, and three counts
of failure to file an income tax return, in violation of 26

U.S.C. § 7203.

He was sentenced to a total of 156 months of

imprisonment and three years of supervised release.

[Hardy,

Judgment in a Criminal Case, filed 9/15/05 (dkt. no. 636), at
1-3.]

On March 15, 2018, while on supervised release, Hardy was

brought before a magistrate judge for an initial appearance for
violation of his terms of release.

A hearing on an order to show

cause why his supervised release should not be revoked was
scheduled before Judge Gillmor.
(dkt. no. 845).]

[Id., Minutes, filed 3/15/18

A preliminary hearing was scheduled for

March 16, 2018, but it was continued to March 29, 2018.
was taken into custody on March 16, 2018.
3/16/18 (dkt. no. 852).]
the proceedings in Hardy.

Hardy

[Id., Minutes, filed

Perlmutter and Kim have participated in
Plaintiff’s Complaint in the instant

case alleges Defendants “have acted in concert to confine
Mr. Hardy for not providing signatures the Court has not ordered
him to provide.”

[Complaint at pg. 2.]

Plaintiff attempts to

bring claims against Defendants for violations of 18 U.S.C.
§§ 241 and 1201, and perhaps 18 U.S.C. § 4.
STANDARD
Because Plaintiff has not paid a filing fee, regardless
of whether he is a prisoner, the Court must screen his Complaint
pursuant to 28 U.S.C. § 1915(e)(2).

Section 1915(e)(2)(B)

provides that “the court shall dismiss the case at any time if
the court determines that . . . the action . . . (i) is frivolous

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or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.”

A dismissal under § 1915(e)(2)(B)

is governed by the same standard as a dismissal under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015).

Rosati v.

Dismissal for

failure to state a claim is appropriate if the facts as pleaded
fail to state a claim for relief that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and
quotation marks omitted).

“Determining whether a complaint

states a plausible claim for relief [is] . . . a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id. at 679.

DISCUSSION
Section 241 states:
If two or more persons conspire to injure,
oppress, threaten, or intimidate any person in any
State . . . in the free exercise or enjoyment of
any right or privilege secured to him by the
Constitution or laws of the United States, or
because of his having so exercised the same; or
If two or more persons go in disguise on the
highway, or on the premises of another, with
intent to prevent or hinder his free exercise or
enjoyment of any right or privilege so secured–
They shall be fined under this title or imprisoned
not more than ten years, or both; and if death
results from the acts committed in violation of
this section or if such acts include kidnapping or
an attempt to kidnap, aggravated sexual abuse or
an attempt to commit aggravated sexual abuse, or
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an attempt to kill, they shall be fined under this
title or imprisoned for any term of years or for
life, or both, or may be sentenced to death.
Section 4 states:
Whoever, having knowledge of the actual commission
of a felony cognizable by a court of the United
States, conceals and does not as soon as possible
make known the same to some judge or other person
in civil or military authority under the United
States, shall be fined under this title or
imprisoned not more than three years, or both.
To the extent Plaintiff attempts to allege claims against
Defendants for violations of § 4 and § 241, the Complaint fails
to state a plausible claim for relief because neither § 241 nor
§ 4 creates a private cause of action.

See Allen v. Gold Country

Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (“We affirm the
dismissal of Allen’s claims under 18 U.S.C. §§ 241 and 242
because these are criminal statutes that do not give rise to
civil liability.”); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th
Cir. 1980) (same); Hysell v. Schwarzenegger,
No. 1:10–cv–01233–AWI–GBC (PC), 2012 WL 1130609, at *3 (E.D. Cal.
Mar. 30, 2012) (finding no private cause of action under § 4).
Similarly, § 1201(a) states – subject to exceptions
inapplicable here, “[w]hoever unlawfully seizes, confines,
inveigles, decoys, kidnaps, abducts, or carries away and holds
for ransom or reward or otherwise any person . . . shall be
punished by imprisonment for any term of years or for life and,
if the death of any person results, shall be punished by death or

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life imprisonment.”

Plaintiff’s attempt to state a claim for

violation of § 1201 fails to state a plausible claim for relief.
See Harnden v. Croswell-Lexington Cmty. Sch., Case
No. 15-cv-12738, 2016 WL 2731188, at *2 (E.D. Mich. May 11, 2016)
(“there is no private right of action for purported violations of
the Federal Kidnapping Act” (citing Monroe v. McNairy Cnty.,
Tenn., 850 F. Supp. 2d 848, 876 (W.D. Tenn. Feb. 6, 2012) (“[T]he
Federal Kidnapping Act is a criminal statute, and there is no
indication that Congress intended to create a private right of
action for violations of its provisions.”); Giano v. Martino, 673
F. Supp. 92, 95 (E.D.N.Y. 1987) (“[T]he Federal Kidnapping Act
was never intended to confer rights on the victim of a
kidnapping, and does not do so by its language.”), aff’d, 853
F.2d 1429 (2d Cir. 1987) (Table)).
Plaintiff’s claims, which allege violations of §§ 4,
241, and 1201, are therefore dismissed.1

The Ninth Circuit has

held, “[u]nless it is absolutely clear that no amendment can cure
the defect, . . . a pro se litigant is entitled to notice of the
complaint’s deficiencies and an opportunity to amend prior to

1

Because Plaintiff cannot bring claims alleging criminal
offenses against Defendants, this Court does not need to address
whether Defendants would have immunity from such claims. See,
e.g., Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en
banc) (“Judges and those performing judge-like functions are
absolutely immune from damage liability for acts performed in
their official capacities.” (citing Bradley v. Fisher, 80 U.S.
(13 Wall.) 335, 347, 20 L. Ed. 646 (1872))).
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dismissal of the action.”
248 (9th Cir. 1995).

Lucas v. Dep’t of Corr., 66 F.3d 245,

In this case, it is absolutely clear no

amendment can cure the defects in the Complaint because the
criminal statutes Plaintiff relies upon do not support civil
liability.

The dismissal is therefore with prejudice, in other

words, Plaintiff will not be allowed to file an amend complaint
in this case, and the case will be closed.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Verified
Criminal Complaint, filed March 27, 2018, is HEREBY DISMISSED
WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and the
Clerk’s Office is DIRECTED to terminate this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 4, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

DAVID R. MYRLAND VS. HELEN GILLMOR, ET AL; CIVIL 18-00120 LEKRLP; ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C.
§1915(e)(2)(B)(ii)

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