Justice (ID 74505) v. Carpenter et al

Filing 13

ORDER ENTERED: Plaintiff's motion for writ of void judgment or writ of quo warranto (Doc. 12 ) is denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/16/20. Mailed to pro se party Jason Alan Justice by regular mail. (smnd)

Case 5:19-cv-03106-SAC Document 13 Filed 11/16/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON ALAN JUSTICE,
Plaintiff,
v.

CASE NO. 19-3106-SAC

SHEA CARPENTER, et al.,
Defendants.
ORDER
This matter is before the court on Plaintiff’s motion for writ of void judgment and writ of
quo warranto (Doc. 12). Plaintiff brought this pro se civil rights action pursuant to 42 U.S.C.
§ 1983, seeking to bring criminal charges against the Defendants and asking the Court to appoint
a Special Prosecutor to prosecute them. On July 16, 2019, the Court entered a Memorandum and
Order and Order to Show Cause (Doc. 5) (“MOSC”), granting Plaintiff until August 9, 2019, to
show good cause why his Complaint should not be dismissed for the reasons set forth in the
MOSC. In the MOSC, the Court found that Plaintiff’s request to bring criminal charges against
Defendants is subject to dismissal because this Court cannot order the initiation of criminal
charges, which is a decision within the discretion of prosecuting attorneys. See Presley v.
Presley, 102 F. App’x 636, 636–37 (10th Cir. 2004) (holding that a court order for “investigation
and prosecution of various people for various crimes” would “improperly intrude upon the
separation of powers”). The powers and duties of special grand juries are set forth in 18 U.S.C.
§ 3332. Section 3332 does not create a private right of action. Private rights of action to enforce
federal law must be created by Congress, and courts look to whether the text of the statute itself
clearly “display[s] congressional intent to create new rights.” Morales v. U.S. Dist. Court for
Southern Dist. of Florida, 580 F. App’x 881, 886 (11th Cir. 2014) (citing Alexander v. Sandoval,
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532 U.S. 275, 286, 289 (2001)). “And Congress must ‘display[ ] an intent to create not just a
private right but also a private remedy.” Id. (citing Alexander, 532 U.S. at 286).
The court in Morales held that there is no “rights-creating” language in § 3332(a), and
even if the language “arguably implies some potential duty owed on the part of the U.S. Attorney
to present information to a special grand jury, that is not a duty owed to Morales individually.”
Id. (citing Alexander, 532 U.S. at 289) (“Statutes that focus on the person regulated rather than
the individuals protected create no implication of an intent to confer rights on a particular class
of persons.”); see also Hantzis v. Grantland, 772 F.Supp.2d 1, 3 (D. D.C. 2009) (“no private
right of action is available” under § 3332(a)); Lundy v. United States, No. 07–1008, 2007 WL
4556702, at *2 (C.D. Ill. Dec. 21, 2007), corrected on other grounds, No. 07–1008, 2008 WL
2510172 (C.D. Ill. June 19, 2008) (“§ 3332(a) does not confer a private right of action”); Bryant
v. Fienberg, No. 206–CV–13849, 2006 WL 2924744, at *2 (E.D. Mich. Oct. 10, 2006) (the
“plaintiff does not have a private cause of action under 18 U.S.C. § 3332(a), the Special Grand
Jury statute”); see also Walters v. Vallani, No. 2:09-CV-00505-KJD-GWF, 2010 WL 597086, at
*7 (D. Nev. Feb.16, 2010) (decision regarding what charge to file or bring before a grand jury is
that of the prosecutor, not the court); Arnett v. Unknown, No. CV 11-5896-JAK(E), 2011 WL
4346329, at *6 (C.D. Cal. Aug. 23, 2011) (“Section 3332(a) contains no “clear and
unambiguous” statement conferring a private right of action on an individual to present evidence
to a special grand jury or to compel a United States Attorney to do so”).
The Court dismissed this case on September 17, 2019 (Docs. 9 and 10) because
Plaintiff’s Response failed to address any of the deficiencies set forth in the MOSC. On
November 10, 2020, plaintiff filed the present motion.

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Under Rule 60(b)(4) of the Federal Rules of Civil Procedure, a court may grant relief
from judgment if the judgment is void. A judgment is void under this provision “only in the rare
instance were [the] judgment is premised either on a certain type of jurisdictional error or on a
violation of due process that deprives a party of notice or the opportunity to be heard.” United
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010).
In this case, the dismissal was entered after Plaintiff failed to show good cause why it
should not be dismissed for the reasons set forth in the MOSC. This dismissal does not render
the judgment void.
Plaintiff also seeks a writ of quo warranto. Under 28 U.S.C. § 1651, the federal courts
may “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a). The remedy is extremely narrow, and
the federal district courts do not have original jurisdiction to issue a writ of quo warranto; rather,
the All Writs Act confers only ancillary jurisdiction where jurisdiction is otherwise lodged in the
court. U.S. ex rel. State of Wis. v. First Federal Sav. and Loan Ass’n, 248 F.2d 804 (7th Cir.
1957). The Court has considered Plaintiff’s request but finds no basis to grant the writ he seeks.
Plaintiff’s remedy to challenge the dismissal of his action was by an appeal.
IT IS THEREFORE ORDERED that Plaintiff’s motion for writ of void judgment or
writ of quo warranto (Doc. 12) is denied.
IT IS SO ORDERED.
Dated November 16, 2020, in Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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