Christian v. United States of America

Filing 3

ORDER that 1 Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk shall file Plaintiff's complaint. FURTHER ORDERED that 2 Motion to Take Notice is DENIED as moot. FURTHER ORDERED that Plaintiff's Complaint is dismissed, without prejudice. Plaintiff shall have until September 1, 2014 to file an amended complaint. Signed by Magistrate Judge George Foley, Jr on 8/1/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERIC LEON CHRISTIAN,

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA, et al.,
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Defendants.
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__________________________________________)

Case No. 2:14-cv-01151-RFB-GWF
ORDER
Application to Proceed in Forma
Pauperis (#1); Motion for the
Court to Take Notice (#2)

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This matter comes before the Court on Plaintiff’s Application to Proceed in Forma Pauperis

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(#1), filed on July 14, 2014. Plaintiff Christian also filed a Motion for the Court to Take Notice

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(#2).

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BACKGROUND
Plaintiff brings this action pursuant to 18 U.S.C. § 241 for conspiracy against his rights.

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This case arises from Plaintiff’s criminal case in which he was convicted for two counts of

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transmitting through interstate commerce email communications containing threats to injure the

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person of another. See United States v. Christian, 749 F.3d 806, 808 (9th Cir. 2014); see also case

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2:09-cr-00303-JCM-VCF. As the Court understands Plaintiff’s complaint, he alleges that Judge

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Mahan, CJA attorney Jess Marchese, the U.S. Marshal’s Service, and the U.S. Attorney’s Office,

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all employees of defendant United States of America, conspired against him in keeping him

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unlawfully imprisoned for 998 days over the sentencing guidelines maximum. See Dkt. #1-2.

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Plaintiff brings this suit for restitution pursuant to the “Mandatory Victim’s Restitution Act” for

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violating his rights under the Speedy Trial Act, causing Plaintiff to serve 44 months for a 13 month

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sentence. See Dkt. #1-2.

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Based on the record in United states v. Christian, case 2:09-cr-00303-JCM-VCF, the

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underlying case in which the allegedly unconstitutional actions occurred, Magistrate Judge Leavitt

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ordered Plaintiff, pursuant to 18 U.S.C. § 4241(d), to be committed to a federal medical center for

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evaluation and treatment until his mental condition improved. See Mins. of Proceedings (#70); see

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also Order (#75). The trial was continued until such time as Plaintiff was determined competent to

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stand trial. Id. Plaintiff was sent to a federal mental health facility for a period of approximately

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one year under § 4241. See Dkt. #209 in case 2:09-cr-00303-JCM-VCF. On September 28, 2011,

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all parties received a sealed report indicating that Plaintiff was competent to stand trial. See Dkt.

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#89 in case 2:09-cr-00303-JCM-VCF. Thereafter, Magistrate Judge Ferenbach, to whom the case

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had been reassigned, scheduled a competency hearing wherein Plaintiff was declared competent to

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stand trial. See Dkt. #102 in case 2:09-cr-00303-JCM-VCF. The trial was then set for January 9,

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2012. Ultimately, Plaintiff was found guilty and sentenced to thirteen (13) months per count to run

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concurrently, with three (3) years of supervised release. See Dkt. #151; see also Judgment (#152).

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On April 16, 2012, the probation officer informed the Court that the Plaintiff would not

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receive credit for his time in the psychiatric facility/federal custody between the period of his arrest

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on June of 2009 through April 16, 2012. See Dkt. #209 in case 2:09-cr-00303-JCM-VCF. This

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was later found to be in error because the Defendant was statutorily entitled to credit under Title 18

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U.S.C. §§ 4241(e), 3585(a), and 3585(b). Id. As a result, after the Bureau of Prisons did its

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calculations, it gave Plaintiff credit for the entire period between when he was arrested on the

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Complaint and his sentencing date, and released the defendant immediately into state custody. Id.

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The Plaintiff claimed he had over 900 days of “extra time,” to which he was entitled to restitution.

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See Dkt. #169 in case 2:09-cr-00303-JCM-VCF. As a result of the Bureau of Prisons’ calculations,

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when the United States Probation Office filed a petition regarding supervised release, this Court

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terminated supervised release with credit for time served on April 24, 2013. Id. At all relevant

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times during the underlying proceeding, Plaintiff was represented by counsel.

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Proceeding in proper person, Plaintiff requested an extension of time to file a § 2255 Writ

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of Habeas Corpus, therein alleging he wrongfully “served 3 times the court ordered sentence.” See

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Dkt. #177 in case 2:09-cr-00303-JCM-VCF. In its order denying Plaintiff’s motion, the Court
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indicated that “[o]n March 22, 2013, Christian made his initial appearance before the magistrate on

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a petition to revoke his supervised release. Based upon the parties’ understanding that Christian

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had served a custodial sentence beyond that which was imposed by the court, the parties agreed to

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recommend a sentence of credit for time served and terminate any remaining term of supervised

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release. On April 30, 2013, this court agreed to the parties’ recommendation and sentenced

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Christian to credit for time served with no additional supervision. Christian’s case was then

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internally closed.” See Dkt. # 179 in case 2:09-cr-00303-JCM-VCF. Plaintiff subsequently filed a

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Motion for Relief for Sentencing Guidelines (#180) and a Motion for Judgement on his motion for

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relief (#183), therein requesting $10,000,000.00 for the Bureau of Prisons’ alleged failure to follow

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pre-release procedures and for the excessive time served. In denying his motions, the court found

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that the sentencing guidelines are only advisory and do not set maximum limits. Further, the court

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found nothing in 18 U.S.C. § 4042 which creates a private right of action for alleged violations of

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that statute. See Dkt. #185 in case 2:09-cr-00303-JCM-VCF.

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Appointed CJA attorney Jess Marchese assisted Plaintiff with his appeal to the Ninth

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Circuit Court of Appeals on March 19, 2014. The Ninth Circuit vacated Plaintiff’s conviction and

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remanded the case for a new trial, finding that the district court should have allowed Plaintiff’s

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expert, a psychologist who had earlier examined him for competency to stand trial, to testify

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regarding his diminished capacity defense, and that he was entitled to a jury instruction on

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diminished capacity even without such expert testimony. See Dkt. #199, 205 in case 2:09-cr-

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00303-JCM-VCF. In lieu of setting the case for a new trial, Judge Mahan ordered that the case be

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dismissed as moot. See Dkt. #13 in case 2:09-cr-00303-JCM-VCF. Plaintiff subsequently filed a

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pro se Motion for Restitution (#200), which was denied for his failure to bring the motion through

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his counsel of record. See Dkt. # 216 in case 2:09-cr-00303-JCM-VCF. The Court subsequently

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struck two more motions filed by Plaintiff requesting reconsideration of his motion for restitution,

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therein finding that the form of relief sought, $10,000,000.00, was not available in his criminal

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proceeding. See Dkt. #223 in case 2:09-cr-00303-JCM-VCF. On July 8, 2014, Plaintiff filed a

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Motion for Restitution under the Mandatory Victim Restitution Act (#226). In its order denying

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Plaintiff’s motion, the Court stated that “this is Christian’s third attempt at obtaining monetary
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relief in this criminal action, which is now closed. Christian has been repeatedly instructed by the

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court that such relief is not available in these proceedings. Accordingly, the court hereby advised

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Christian that any additional documents filed by him in this closed case will be stricken without

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consideration.” See Dkt. #227 in case 2:09-cr-00303-JCM-VCF.

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Plaintiff then pursued an action pursuant to 42 U.S.C. § 1983, filing his complaint and an

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application to proceed in forma pauperis on August 1, 2013, in case 2:13-cv-01361-MMD-GWF.

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Therein Plaintiff sought to sue United States District Judge James Mahan and retired United States

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Magistrate Judge Lawrence Leavitt for official judicial actions taken in his criminal case. See Dkt.

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#2 in case 2:13-cv-01361-MMD-CWH. Specifically, Plaintiff argued that Judge Mahan and

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Magistrate Judge Leavitt acted outside of their jurisdiction by continuing Plaintiff’s criminal

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proceedings and forcing him to undergo pre-trial competency evaluations without his consent after

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two Magistrates had already found Christian competent to stand trial. See Dkt. #4 at pg. 4 in case

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2:13-cv-01361-MMD-CWH. Plaintiff alleged that the continuance caused him to

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unconstitutionally serve time in excess of the sentencing guidelines. See Dkt. #1-2 in case 2:13-cv-

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01361-MMD-CWH. Plaintiff sought $10,000,000.00 for “being held hostage unlawfully.” Id.

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In her order dismissing Plaintiff’s case with prejudice, Judge Du stated that “[w]hile the

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Court notes there were procedural delays due to competency issues, the Court finds that none of the

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allegations in the Complaint suggest that Judge Mahan and Judge Leavitt were acting outside of

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their official capacities” making them immune from damage liability for acts performed in their

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official capacities. See Order (#5) in case 2:13-cv-01361-MMD-CWH. Plaintiff argued that he

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intended to sue the United States in lieu of the respective judges, however, the Court noted that

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Plaintiff’s Complaint did not allege any theory under which the United States could be held liable

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for monetary damages. See Order (#5) in case 2:13-cv-01361-MMD-CWH.

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Plaintiff now brings this action based on facts arising out of the same transaction and

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occurrence. Plaintiff seeks $10,000,000.00 in restitution against the United States for unlawful

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imprisonment. See Dkt. #1-1, 1-2. Specifically, Plaintiff seeks restitution for Judge Mahan’s

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“erroneous procedural actions”, the U.S. Attorneys’ Office for filing false documents which led to

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unlawful imprisonment, the U.S. Marshal’s Service for “kidnapping [him] into federal custody on a
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federal civil case without [his] consent”, and defense attorney Jess Marchese for refusing to file

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pre-trial motions to dismiss and to suppress evidence. See Dkt. #1-2.

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DISCUSSION
I.

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Application to Proceed In Forma Pauperis
Plaintiff filed this instant action and attached a financial affidavit to his application and

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complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant to

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28 U.S.C. § 1915, the Court finds that he is unable to pre-pay the filing fee. As a result, Plaintiff's

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request to proceed in forma pauperis in federal court is granted. Mr. Christian also filed a Motion

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for the Court to Take Notice (#2), therein requesting permission to proceed in form pauperis based

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on a grant of leave to proceed in forma pauperis in a prior case. Plaintiff’s Motion (#2) is moot

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because the Court is permitting him to proceed in this action in forma pauperis.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

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relief may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be

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dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a

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doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to

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relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed

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as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke

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v. Williams, 490 U.S. 319, 327–28 (1989). Moreover, “a finding of factual frivolousness is

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appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton v.

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Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the

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plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies,

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unless it is clear from the face of the complaint that the deficiencies could not be cured by

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amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
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III.

Instant Complaint
Plaintiff moves this Court for restitution pursuant to 18 U.S.C. § 241 for conspiracy against

his rights and pursuant to the Mandatory Victim’s Restitution Act, 18 U.S.C. § 3663A.

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1.

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The Mandatory Victim’s Restitution Act provides for mandatory restitution to victims of

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Mandatory Victim’s Restitution Act

certain crimes. The statute states:
[n]otwithstanding any other provision of law, when sentencing a defendant
convicted of an offense described in subsection (c), the court shall order, in addition
to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty
authorized by law, that the defendant make restitution to the victim of the offense or,
if the victim is deceased, to the victim’s estate.
18 U.S.C. § 3663A(a)(1).

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Here, Plaintiff fails to show that he is the victim of a crime entitled to relief pursuant to the

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Mandatory Victim’s Restitution Act. None of the named defendants were convicted of an offense,

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therefore, Plaintiff is not entitled to relief under the Mandatory Victim’s Restitution Act.

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2.

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Title 18 of the United States Code codifies statutory crimes and criminal procedure.

18 U.S.C. § 241 Conspiracy against rights

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Therefore, unless the criminal statute provides a private right of action, violations of Title 18 are

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properly brought by the government through criminal proceedings rather than by individuals

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through civil actions. See Abou-Hussein v. Gates, 657 F.Supp.2d 77, 79 (D.D.C. 2009) (allegations

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in action alleging that Government officials attempted to frame plaintiff for espionage, that officials

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violated criminal statutes prohibiting fraud or false statements and civil rights conspiracy failed to

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state a claim upon which relief could be granted; statutes prohibiting those offenses did not

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expressly create a private right of action); see also Prunte v. Universal Music Group, 484

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F.Supp.2d 32, 42 (D.D.C. 2007) (noting that the Supreme Court has refused to imply a private right

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of action in a bare criminal statute). Section 241 of Title 18 states:

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[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any
person in any State, Territory, Commonwealth, Possession, or District 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

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[i]f 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–

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[t]hey 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 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.

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18 U.S.C. § 241

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Here, 18 U.S.C. § 241 is a criminal statute that does not provide a private right of action.
See United States v. Philadelphia, 482 F.Supp. 1248 (E.D. Pa. 1979), aff’d 644 F.2d 187 (3d Cir.

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1980) (finding that 18 U.S.C. §§ 241 and 242 create criminal penalties for deprivations of

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constitutional rights, effected by means of conspiracy or under color of state law. On their face,

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these sections neither authorize any civil suit nor create any civil liability). Therefore, Plaintiff is

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not permitted to proceed in a civil action on his § 241 conspiracy against rights claim.

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3.

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The United States as a sovereign is immune from suit unless it consents to being sued. See

Sovereign Immunity

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United States v. Mitchell, 445 U.S. 535, 538 (1980). A waiver of sovereign immunity cannot be

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implied but must be unequivocally expressed. Id. The United States Supreme Court in Price v.

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United States, 174 U.S. 373, 375-76 (1899) observed that “[t]he United States cannot be sued in

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their courts without their consent, and, in granting such consent, congress has an absolute discretion

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to specify the cases and contingencies in which the liability of the government is submitted to the

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courts for judicial determination. Beyond the letter of such consent the courts may not go, no

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matter how beneficial they may deem, or in fact might be, their possession of a larger jurisdiction

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over the liabilities of the government.”

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Here, Plaintiff’s complaint fails to allege any theory under which the United States could

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be held liable for monetary damages. Therefore, the Court will dismiss Plaintiff’s Complaint with

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leave to amend to give the Plaintiff an opportunity to allege an appropriate cause of action under

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federal law. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis is

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granted. Plaintiff shall not be required to pre-pay the full filing fee of three hundred fifty dollars

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($350.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Complaint
(#1-2).

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Take Notice (#2) is denied as
moot.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed, without prejudice,

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with leave to amend in accordance with the discussion above. Plaintiff shall have until September

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1, 2014 to file an amended complaint. Failure to do so will result in a recommendation that this

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action be dismissed with prejudice.

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DATED this 1st day of August, 2014.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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