Chernoff v. Carter
Filing
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MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson. DISMISSING 1 Complaint without prejudice. Plaintiff may file an Amended Complaint within 21 days of entry of this Order. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LEE JOSEPH CHERNOFF,
Plaintiff,
v.
WILLIAM LEE CARTER et al.,
Defendants.
No. 18cv417 WJ/KK
Consolidated with:
No. 18cv418 WJ/KK
No. 18cv419 WJ/KK
No. 18cv420 WJ/KK
No. 18cv421 WJ/KK
No. 18cv422 WJ/KK
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on Plaintiff’s Complaints for Civil Rights
Violations filed in the consolidated cases referenced above.
Plaintiff, who is proceeding pro se, initiated six cases on May 2, 2018 against various
Defendants. Because the Complaints in each of the cases contain identical factual allegations,
the Court consolidated the cases. In addition to his civil rights claims, the Complaints assert
general conspiracy claims and claims under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. §§ 1961-1968.
Conspiracy Claims
The Court dismisses the conspiracy claims against all Defendants for failure to state a
claim. Plaintiff makes several conclusory allegations that “Judge Strother conspir[ed] with
[Defendants]” but does not allege specific facts showing an agreement and concerted action
amongst the defendants. Complaint ¶ 66 at 9, ¶ 102 at 11-12, ¶ 112 at 12-13, ¶ 154 at 16.
“[C]onclusory allegations without supporting factual averments are insufficient to state a claim
on which relief can be based . . . [and] in analyzing the sufficiency of the plaintiff's complaint,
the court need accept as true only the plaintiff's well-pleaded factual contentions, not his
conclusory allegations.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Racketeer Influenced and Corrupt Organizations Act (“RICO”) Claims
The Court dismisses Plaintiff’s claims against Defendants pursuant to the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. RICO allows for
criminal penalties, see 18 U.S.C. § 1963, and civil remedies, see 18 U.S.C. § 1964(c). The Court
dismisses Plaintiff’s claims for criminal penalties because “a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.” Diamond v. Charles, 476
U.S. 54, 64 (1986). The Court dismisses Plaintiff’s RICO claims for civil remedies due to
Plaintiff’s lack of standing to bring a RICO claim because Plaintiff has not alleged that he was
injured in his business or property by reason of Defendants’ alleged violation of
18 U.S.C. § 1962. See Gilmor v. Thomas, 490 F.3d 791, 797 (10th Cir. 2007) (“a plaintiff has
standing to bring a RICO claim only if he was injured in his business or property by reason of
the defendant’s violation of § 1962”); Dias v. City and County of Denver, 567 F.3d 1169, 1176
(10th Cir. 2009) (standing is a component of this Court’s jurisdiction, and the Court has an
obligation “to consider it sua sponte to ensure the existence of an Article III case or
controversy”).
Chernoff v. Carter, No. 18cv417, and Chernoff v. Marks, No. 18cv418
Plaintiff was a party to proceedings in McLennan County Court in Texas. Defendant
Carter is a “McLennan County Court P[sych]ologist,” and Defendant Marks is a “McLennan
County Court Psychiatrist.”
Complaints at 1.
Plaintiff makes the general allegation that
Defendants Carter and Marks “[r]epeatedly found the Plaintiff incompetent to stand trial with no
proof positive,” and “[r]ecommended intake to North Texas State Hospital for Premeditated
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Attempted Murder under the guise of Competency Training.” Complaint ¶ 19(D) at 4. Plaintiff
later alleges that Defendants Carter and Marks “recommend[ed] the Plaintiff go back to North
Texas State Psychiatric Hospital for Premeditated Attempted Murder under the guise
competency education.” Chernoff v. Carter Complaint ¶ 138; Chernoff v. Marks Complaint
¶ 137. There are no other substantive factual allegations regarding Defendants Carter and Marks.
The Court dismisses the civil rights claims against Defendants Carter and Marks for
failure to state a claim. The only substantive allegations against Defendants Carter and Marks
are that they found Plaintiff incompetent to stand trial and recommended that Plaintiff be
admitted to North Texas State Hospital. Those allegations, without more, are not sufficient to
state a claim for deprivation of rights secured by the Constitution or federal laws. Furthermore,
Plaintiff alleges that Defendants are a “Court Psychologist” and a “Court Psychiatrist.”
Complaint ¶ 5 at 1. Defendants are therefore immune from monetary damages claims. See
Sawyer v. Gorman, 317 Fed.Appx. 725, 728 (10th Cir. 2008) (“[I]mmunity which derives from
judicial immunity may extend to persons other than a judge where performance of judicial acts
or activity as an official aid of the judge is involved. Absolute judicial immunity has thus been
extended to non-judicial officers, like clerks of court, where their duties had an integral
relationship with the judicial process”).
Chernoff v. Strother, No. 18cv419
Defendant Strother is a McLennan County Court Judge. See Complaint ¶¶ 3-4. Plaintiff
makes the general allegations that Defendant:
1.
Supported False Charges and Manufactured False Charges.
2.
Repeatedly ordered the Plaintiff to be Falsely Imprisoned in McLennan
County Jail.
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3.
Forced the Plaintiff to be tortured for years in solitary confinement by
McLennan County Sheriffs.
4.
Forced the Plaintiff to take highly toxic drugs that were causing his health
to deteri[or]ate.
5.
Remanding the Plaintiff to North Texas State Hospital Psychiatric
Maximum-Security Detention Center where the Plaintiff was being
drugged to death.
6.
Conspired the Premeditated Attempted Murder of the Plaintiff.
Complaint ¶ 17(E) at 4-5.
Plaintiff makes numerous specific factual allegations asserting
Defendant Strother ordered Plaintiff into solitary confinement, issued a violation of a protective
order against Plaintiff, manufactured charges of misdemeanor terroristic threat of a family
member and felony assault to the elderly, found Plaintiff incompetent to stand trial, remanded
Plaintiff to a psychiatric hospital, and held Plaintiff on a one million dollar bond. See Complaint
¶¶ 21, 40, 42, 57-58, 60, 97, 101, 131-132, 135, 137,147, 149-150, 152, 189 (other allegations in
¶¶ 140-145 refer to an un-named judge who allows Plaintiff to testify, orders zero medication be
given to Plaintiff, orders a competency evaluation and remands Plaintiff to McLennan County
Jail).
The Court dismisses the claims against Defendant Strother because he is a judge and the
claims against him arose from actions taken in his judicial capacity. See Sawyer v. Gorman, 317
Fed.Appx. 725, 727 (10th Cir. 2008) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)) (“state
court judges are absolutely immune from monetary damages claims for actions taken in their
judicial capacity, unless the actions are taken in the complete absence of all jurisdiction”);
Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (articulating broad immunity rule that a “judge
will not be deprived of immunity because the action he took was in error, was done maliciously,
or was in excess of his authority”).
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Chernoff v. McLennan County Sheriff’s Dep’t, No. 18cv420
The Defendants are the McLennan County Sheriff’s Department and McLennan County
Sheriff Parnell McNamara. The Complaint alleges that Defendant Sheriff McNamara “is liable
for all acts committed by employees lack of training and supervision under the command of the
Sheriff.” Complaint at 3. The Complaint also alleges that “Defendant Texas State Actors
McLennan County Sheriff’s Department; 1. Torturing the Plaintiff in solitary confinement for
years in McLennan County Jail. 2. Forced the Plaintiff to take highly toxic drugs that were
causing his health to deteri[or]ate,” and in “about July 23, 2003, denied Plaintiff medical
treatment by ordering a nurse not to assist Plaintiff in digging a bullet out of his arm. Complaint
¶¶ 22(B), 29, 42-43, 63-64 (it appears that Defendants allegedly forced Plaintiff to take drugs
between 2010 and 2014, see ¶¶48, 70, 82, 104, 116).
The Court dismisses the claims against the McLennan County Sheriff’s Department and
McLennan County Sheriff Parnell McNamara because they are barred by the statute of
limitations.
Plaintiff’s claims against the McLennan County Sheriff’s Department and
McLennan County Sheriff Parnell McNamara arose from actions occurring in about 2003 and
between 2010 and 2014. Plaintiff filed his claims against the McLennan County Sheriff’s
Department and McLennan County Sheriff Parnell McNamara after the two-year limitations
period expired. See Keith v. Koerner, 843 F.3d 833, 850 (10th Cir. 2016) (stating “every section
1983 claim is in essence an action for injury to personal rights,” and that courts therefore “apply
the statute of limitations for personal injury actions in the state where the claim accrued”); KingWhite v. Humble Independent School District, 803 F.3d 754, 761 (5th Cir. 2015) (concluding that
“the district court did not err in applying the two-year limitations period” to plaintiff’s § 1983
claims).
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Chernoff v. City of Waco, Texas, No. 18cv421
Defendants are the City of Waco, the City of Waco Police Department, and City of Waco
Police Chief Ryan Holt. The Complaint states:
The Defendant Texas State Actor Waco Police Department to [sic] repeatedly;
1) Falsifying Police Reports.
2) Failing to take statements from credible witnesses on numerous occasions.
3) Making up charges to falsely imprison the Plaintiff.
4) Failing to investigate any Crimes committed against the Plaintiff.
5) Failing to prosecute any Crimes committed against the Plaintiff.
Complaint at 4. Many of the substantive factual allegations indicate that unnamed police officers
arrested Plaintiff, delivered him to the McLennan County Jail, ignored credible witnesses,
refused to take a statement from Plaintiff, impounded two vehicles, detained Plaintiff for
violating a trespass warning and warned Plaintiff out of his house and a motel. Complaint ¶¶ 41,
58-59,98-99, 101, 165-166, 172, 184. Some allegations state that “about March 22, 2013,
“Defendant Police Officer Seman” handcuffed Plaintiff, drew his weapon, pointed it at Plaintiff’s
head, and threatened to kill him. Complaint ¶¶ 73-81.
The Court dismisses the civil rights claims against the City of Waco Police Department
because the Police Department is a subunit of the City of Waco and is not a suable entity.
“Generally, governmental sub-units are not separate suable entities that may be sued under
§ 1983.” Hinton v. Dennis, 362 Fed.Appx. 904, 907 (10th Cir. 2010) (citing Martinez v. Winner,
771 F.2d 424, 444 (10th Cir. 1985) (holding that City and County of Denver would remain as a
defendant and dismissing complaint as to the City of Denver Police Department because it is not
a separate suable entity)).
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The Court also dismisses the civil rights claims against the City of Waco and City of
Waco Police Chief Ryan Holt for failure to state a claim. “To hold a local government liable
under § 1983, a plaintiff must prove: “(1) a municipal employee committed a constitutional
violation, and (2) a municipal policy or custom was the moving force behind the constitutional
deprivation.” McLain v. Sheriff of Mayes County, 595 Fed.Appx. 748, 753-753 (10th Cir. 2014)
(citing Myers v. Okla. Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1318 (10th Cir.1998) and
Monell v. Dep't of Soc. *754 Servs., 436 U.S. 658, 694 (1978)). There are no allegations that a
City of Waco policy or custom was the moving force behind the alleged constitutional violations.
There are no allegations mentioning City of Waco Police Chief Ryan Holt.
Finally, the Court dismisses the civil rights claims against Defendant Police Officer
Seman because they are barred by the statute of limitations. Plaintiff’s claims against Defendant
Police Officer Seman arose from actions occurring “about March 22, 2013.” Plaintiff filed his
claim against Defendant Police Officer Seman after the two-year limitations period expired.
Chernoff v. Texas State Actors at North Texas State Hospital, No. 18cv422
Defendants are “Texas State Actors at North Texas State Hospital” and North Texas State
Hospital Superintendent James Smith. The Complaint states:
The Defendant Texas State Actors at North Texas State Hospital;
1.
Forced the Plaintiff to take massive quantities of highly toxic drugs.
2.
Documented the massive weight gain and the complete deteri[or]ation of
the Plaintiff’s health.
3.
Conspired the Premeditated Attempted Murder of the Plaintiff.
Complaint ¶ 19(F). In 2010 or 2011 “Defendant State Actors at Defendant North Texas State
Hospital, a Maximum-Security Psychiatric Hospital forced the Plaintiff to take massive doses of
highly toxic drugs that were killing him.” Complaint ¶¶ 43, 58, 60-61. In 2013 or 2014,
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“Defendant North Texas State Hospital Actors give the Plaintiff massive doses of Seroquel a
toxic antipsychotic drug in concert with other narcotics that caused extensive deteri[or]ation of
the Plaintiff’s health.” Complaint ¶¶ 77,98, 101-102.
The Court will dismiss the claims against the Texas State Actors at North Texas State
Hospital because they are barred by the statute of limitations. Plaintiff’s claims against the
Texas State Actors at North Texas State Hospital arose from actions occurring from about 2010
to 2014. Plaintiff filed his claims against Defendant the Texas State Actors at North Texas State
Hospital after the two-year limitations period expired.
Dismissal of Complaints
Having dismissed Plaintiff’s federal law claims, the Court declines to exercise
jurisdiction over Plaintiff’s state law claims and dismisses the Complaints without prejudice. See
28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction
over a claim . . . if . . . the district court has dismissed all claims over which it has original
jurisdiction”). Plaintiff may file an amended complaint within 21 days of entry of this Order.
IT IS SO ORDERED.
______________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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