Carter v. Zamber

Filing 4

ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS, AND (2) DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND re 2 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 5/24/2018. Based on the foregoing, Plaintiff's IFP Application is GRANTED, and his Complaint is DISMISSED for failure to state a claim and without leave to amend in this court. Plaintiff may file his state-law claims in state court. The Clerk of Court is directed to close this case. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JERRY DEAN CARTER,

CIV. NO. 18-00176 JMS-KSC
ORDER (1) GRANTING
APPLICATION TO PROCEED IN
FORMA PAUPERIS, AND
(2) DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND

Plaintiff,

vs.
GARY CHARLES ZAMBER,
Defendant.

ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA
PAUPERIS, AND (2) DISMISSING COMPLAINT WITHOUT
LEAVE TO AMEND
I. INTRODUCTION
On May 15, 2018, pro se Plaintiff Jerry Dean Carter (“Plaintiff”) filed
a Complaint against Defendant Gary Charles Zamber (“Defendant”) asserting
federal criminal and civil rights claims. ECF No. 1. Plaintiff also filed an
Application to Proceed in forma pauperis (“IFP Application”). ECF No. 2. Based
on the following, the court GRANTS the IFP Application and DISMISSES the
Complaint without leave to amend.
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II. DISCUSSION
A.

Plaintiff’s IFP Application is Granted
Plaintiff has made the required showing under 28 U.S.C. § 1915 to

proceed without prepayment of fees. Therefore, the court GRANTS Plaintiff’s IFP
Application.
B.

Plaintiff’s Complaint is Dismissed Without Leave to Amend
1.

The Complaint
The Complaint alleges that Defendant was appointed by the Hawaii

District Court of the Third Circuit, Hilo Division, as Plaintiff’s defense counsel in
connection with a state criminal misdemeanor action — Case No. 3DCW-180000061. Compl. at PageID #4, ECF No. 1. After being appointed, Defendant
allegedly entered court while it was in session, sat next to Plaintiff, and announced
that he is Plaintiff’s counsel. Id. at PageID #6. Defendant and Plaintiff moved to a
conference room to discuss Plaintiff’s case. Id. Defendant allegedly suggested
that Plaintiff plead guilty, but Plaintiff said “no.” Id. at PageID #6-7. Plaintiff
moved to the door and said “go tell the judge your decision.” Id. at PageID #7.
Defendant moved to withdraw as counsel, telling the court that Plaintiff “did not
want him.” Id. at PageID #4. Plaintiff alleges that because he never told
Defendant to resign, Defendant reported false information to the court. Id. at

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PageID #4-5, 8. The next 28 pages of the Complaint include a rambling, confusing
narrative of Plaintiff’s life history, various assaults and wrongs committed against
him over the years, and conclusory allegations concerning numerous individuals
not named in this action. Id. at PageID # 9-36.
Plaintiff filed the instant Complaint asserting claims for violations of
Plaintiff’s civil rights guaranteed by the First, Fifth, Sixth, Eighth, Thirteenth, and
Fourteenth Amendments to the Constitution, state-law claims for slander and
defamation, and criminal claims pursuant to 18 U.S.C. §§ 1001(a)(1) and (2) for
providing false information and promoting a hoax. Id. at PageID #3, 5, 8-9. The
Complaint seeks a determination that Defendant is guilty of all charges and
allegations, and damages of $5 million. Id. at PageID #4, 8-9. 1
2.

Standards of Review
The court must subject each civil action commenced pursuant to 28

U.S.C. § 1915(a) to mandatory screening and order the dismissal of any claims it
finds “frivolous, malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); see, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.
1

Plaintiff also filed two nearly identical complaints against other formerly appointed
counsel in the same underlying state criminal action. See Carter v. Curtis, Civ. No. 18-00179
JMS-RLP (D. Haw. May 16, 2018); Carter v. Van Leer, Civ. No. 18-00178 HG-RLP (D. Haw.
May 16, 2018).

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2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are
not limited to prisoners”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en
banc) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to
dismiss sua sponte an IFP complaint that fails to state a claim).
Plaintiff is appearing pro se; consequently, the court liberally
construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court
also recognizes that “[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 dismissal of the action.” Lucas v. Dep’t of
Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d
967, 977-78 (9th Cir. 2013).
3.

Application of Standards to the Complaint
a.

The Complaint Fails to State a § 1983 Claim

Although the Complaint alleges that Defendant violated numerous
amendments to the Constitution, the amendments themselves do not create direct
causes of action. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 929
(9th Cir. 2001). Rather, the method for vindicating federal rights conferred by
Constitutional amendments is through 42 U.S.C. § 1983. Albright v. Oliver, 510
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U.S. 266, 271 (1994) (plurality). That is, a plaintiff may bring an action pursuant
to § 1983 for “the deprivation of any rights, privileges, or immunities secured by
the Constitution” against a person acting “under color of any statute, ordinance,
regulation, custom or usage, of any State[.]” 42 U.S.C. § 1983.
To state a claim under § 1983, a plaintiff must allege two essential
elements: (1) that the defendant acted under color of state law; and (2) that the
defendant caused the plaintiff to be deprived of a right secured by the Constitution
and laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988); Nurre v.
Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009).
Under well-settled law, when public defenders or court-appointed
counsel are acting in the role of advocate, they are not acting under color of state
law for purposes of § 1983. See Vermont v. Brillon, 556 U.S. 81, 91 (2009)
(“[A]ssigned counsel ordinarily is not considered at state actor.”); Georgia v.
McCollum, 505 U.S. 42, 53 (1992); Jackson v. Brown, 513 F.3d 1057, 1079 (9th
Cir. 2008); Miranda v. Clark Cty., Nev., 319 F.3d 465, 468 (9th Cir. 2003)
(affirming dismissal of § 1983 claim and explaining that even assuming the public
defender provided inadequate representation, because he had “assumed his role as

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counsel and . . . had begun to perform ‘a lawyer’s traditional functions,’ . . . he was
not a state actor”).2
Plaintiff’s claims against Defendant all arise from Defendant’s role as
Plaintiff’s court-appointed counsel in connection with a state criminal action.
Although the Complaint alleges that Defendant did not act in Plaintiff’s favor,
Defendant was engaged in a lawyer’s traditional functions — an initial meeting
with his client after being appointed by the court, and appearing for a court hearing
in the underlying state criminal action against Plaintiff. Thus, Defendant was not
acting under color of state law. Plaintiff’s § 1983 claims for Constitutional
violations are DISMISSED for failure to state a claim. And because amendment
would be futile, Plaintiff’s § 1983 claims are dismissed without leave to amend.
b.

No Civil Cause of Action for Alleged Violation of 18 U.S.C.
§ 1001

Plaintiff alleges that Defendant violated federal criminal statute 18
U.S.C. §§ 1001(a)(1) and (2). But “federal criminal law [can] be enforced only by
a federal prosecutor, not by any private party.” Sulla v. Horowitz, 2012 WL
4758163, at *3 (D. Haw. Oct. 4, 2012); see Linda R.S. v. Richard D., 410 U.S. 614,
2

Although not applicable here, there are narrow exceptions to this rule. For example, a
public defender or court-appointed counsel may be a state actor “‘when making hiring and firing
decisions on behalf of the State,’ and ‘while performing certain administrative and possibly
investigative functions.’” Brillon, 556 U.S. at 91 n.7 (quoting Polk Cty. v. Dodson, 454 U.S.
312, 325 (1981)). Additionally, “a criminal defendant’s exercise of a peremptory challenge
constitutes state action for purposes of the Equal Protection Clause.” McCollum, 505 U.S. at 50.
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619 (1973) (“[I]n American jurisprudence . . . a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”). That is, “no
private cause of action exists for violations of 18 U.S.C. [§] 1001.” Loa v.
Congressional Rules & Regulation Comm. Governing Native Am. Funding, 2017
WL 3821777, at *3 (D. Haw. Aug. 31, 2017); see, e.g., Lee v. U.S. Agency for Int’l
Dev., 859 F.3d 74, 78 (D.C. Cir. 2017) (“Accordingly, we affirm the dismissal of
Lee’s claim under 18 U.S.C. § 1001 because the statute does not create a private
cause of action.”). Thus, Plaintiff’s criminal claims are DISMISSED for failure to
state a claim. And because amendment would be futile, they are dismissed without
leave to amend.
c.

The court declines supplemental jurisdiction over state-law
slander and defamation claims

A federal court has subject-matter jurisdiction under diversity of
citizenship (28 U.S.C. § 1332) or through “federal question jurisdiction” (28
U.S.C. § 1331). Peralta v. Hispanic Bus., Inc., 419 F.3d 1064, 1068 (9th Cir.
2005). If it has federal jurisdiction, the court may exercise supplemental
jurisdiction over state-law claims such as slander and defamation. But “district
courts may decline to exercise supplemental jurisdiction . . . if . . . the district court
has dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C.

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§ 1367(c)(3). “[W]hen deciding whether to exercise supplemental jurisdiction, ‘a
federal court should consider and weigh in each case, and at every stage of the
litigation, the values of judicial economy, convenience, fairness, and comity.’” See
City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “[I]n the usual case
in which all federal-law claims are eliminated before trial, the balance of factors
will point towards declining to exercise jurisdiction over the remaining state-law
claims.” Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en
banc).
Here, there does not appear to be any basis for diversity jurisdiction
— the Complaint alleges that both Plaintiff and Defendant live in Hawaii, and
Defendant works in Hawaii. See Compl. at PageID # 1-2, 4. And all federal-law
claims are dismissed without leave to amend. Thus, pursuant to § 1367(c), the
court declines supplemental jurisdiction over Plaintiff’s state-law slander and
defamation claims and dismisses them without prejudice.
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III. CONCLUSION
Based on the foregoing, Plaintiff’s IFP Application is GRANTED,
and his Complaint is DISMISSED for failure to state a claim and without leave to
amend in this court. Plaintiff may file his state-law claims in state court. The
Clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 24, 2018.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Carter v. Zamber, Civ. No. 18-00176 JMS-KSC, Order (1) Granting Application to Proceed In
Forma Pauperis, and (2) Dismissing Complaint Without Leave to Amend
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