Voigt v. Muffenbier et al

Filing 5

ORDER DISMISSING CASE by Hon. Jeffrey L. Viken. (JLV)

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
CLARENCE VOIGT,
Plaintiff,
vs.
ROXANNE MUFFENBIER,
PATRICK A. CONMY,
DANIEL L. HOVLAND,
CHARLES MILLER,
ROBERT ANSLEY,
KAREN K. KLEIN,
RALPH ERICKSON,
TODD E. DUDGEON,
JOHN CHASTAIN, and
BRENT PHIPPS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIV. 1:11-cv-00089-JLV

ORDER

Plaintiff Clarence Voigt filed an application to proceed in forma pauperis.
(Docket 1). Proceeding in forma pauperis is governed by 28 U.S.C. § 1915.
Subsection (e)(2) of the statute provides:
Notwithstanding any filing fee, . . . the court shall dismiss the case at
any time if the court determines that-...
(B) the action or appeal-(i) is frivolous 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.

28 U.S.C. § 1915(e)(2). Subsection (e)(2) allows the court sua sponte to review a
complaint filed with an in forma pauperis application to determine if the action
is frivolous, malicious, fails to state a claim, or seeks monetary relief against a
defendant or defendants who are immune from such relief.
Attached to Mr. Voigt’s motion is a proposed forty-one page complaint.
(Docket 1-1). Mr. Voigt seeks “declaratory, injunctive relief, compensatory
relief including punitive damages and attorneys fees and costs, to redress
defendants violations of plaintiff’s federally protected rights ans [sic] state
common law claims.” Id. at ¶ 1. The complaint asserts these claims “against
defendants in their individual capacity as a federal judicial officer, pursuant to
Title 28 U.S.C. 1331, in claims arising from violations of federal Constitutional
rights guaranteed in the First, Nineth [sic], Fifth, and Fourteenth Amendments
of the Federal Constitution 42 U.S.C. 1983 (under color of law). [sic] and
redressable [sic] pursuant to Bivens v. Six unknown federal Narcotics Agents
403 U.S. 338 (1971).” Id. at ¶ 2. The complaint cites numerous sections of the
United States Constitution, federal law and North Dakota state law as the basis
for plaintiff’s claims. Id. passim. The complaint acknowledges each of the
named defendants is either a federal district judge, federal magistrate judge,
employee of the Federal District Court for the District of North Dakota,
employee of the United States Department of Justice, or employee of the
Administrative Office of the United States Courts. Id. passim. Mr. Voigt alleges

2

each of the named individuals was “acting under the color of state law” in their
official capacities at the time of the alleged conduct. Id. passim.
A pro se complaint must be liberally construed. “[A] pro se complaint,
however inartfully pleaded, must be held to less stringent standards than
formal pleading drafted by lawyers and can only be dismissed for failure to
state a claim if it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (internal citations and quotation marks
omitted).
The court takes judicial notice of Mr. Voigt’s series of cases filed in the
District of the North Dakota.1 Despite each case being decided against him,
Mr. Voigt did not appeal any of those adverse rulings to the United States
Court of Appeals for the Eighth Circuit. Those cases, as well as the current
complaint, are an expression of Mr. Voigt’s dissatisfaction with the State of
North Dakota in handling a worker’s compensation claim and his unhappiness
with the federal district court’s rejection of his pro se filings. See also Docket
1-1 passim.
The complaint contains thirteen claims summarized as follows:
First Claim

Defendants Klein and Erickson deprived Mr. Voigt of
his rights under the color of law. 18 U.S.C. § 243;

1

1:06-cv-045, 1:06-cv-084, 1:07-cv-007, 1:07-cv-008, 1:07-cv-009,
1:07-cv-010, 1:08-cv-001, and 1:10-cv-035.
3

Second Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 42 U.S.C. §§ 1983 & 1985;

Third Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 42 U.S.C. § 1983-due process;

Fourth Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 42 U.S.C. § 1983–First
Amendment;

Fifth Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 42 U.S.C. § 14141–pattern and
practice;

Sixth Claim

Defendants Klein and Erickson conspired against Mr.
Voigt’s constitutional rights. 18 U.S.C. § 241;

Seventh Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 42 U.S.C. § 1983–Freedom of
Speech;

Eighth Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 42 U.S.C. § 1986–neglect to
prevent;

Ninth Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 28 U.S.C. § 1443–civil rights;

Tenth Claim

Defendants Klein and Erickson violated Mr. Voigt’s
constitutional rights. 28 U.S.C. § 1443–civil rights;

Eleventh Claim

Defendants Klein and Erickson violated Mr. Voigt’s
federally protected activities;

Twelfth Claim

Defendant Ansley violated Mr. Voigt’s right under the
Fourteenth Amendment;

Thirteenth Claim Defendants Ansley, Dudgeon, Chastain and Phipps
violated Mr. Voigt’s rights under the Freedom of
Information Act. 5 U.S.C. § 552.
(Docket 1-1, pp. 35-40).
4

Counts 1 and 6 assert claims for criminal violations of Title 18 of the
United States Code. There is no private cause of action arising from the
criminal statutes cited by Mr. Voight. See Frison v. Zebro, 339 F.3d 994, 999
(8th Cir. 2003) (“Criminal statutes, which express prohibitions rather than
personal entitlements and specify a particular remedy other than civil litigation
are . . . poor candidates for the imputation of private rights of action. . . .”)
(internal citation omitted). “Where the text and structure of a statute provide
no indication Congress intends to create new individual rights, there is no
basis for a private suit, whether under [42 U.S.C.] § 1983 or under an implied
right of action.” Id. (citing Gonzaga University v. Doe, 536 U.S. 273, 286
(2002)). There is no indication Congress intended to create a private cause of
action by enacting 18 U.S.C. §§ 243 or 241. See Gustafson v. City of West
Richland, Nos. CV-10-5040-EFS, CV-10-5058-EFS, 2011 WL 5507201 at *4
(E.D. Wash. Nov. 7, 2011) (“[S]ections 241 and 242 do not provide a private
cause of action that may be pursued by individuals.”). See also Newcomb v.
Ingle, 827 F.2d 675, 677 n. 1 (10th Cir. 1987) (“Section 241 is a criminal
statute prohibiting acts of conspiracy against the rights of citizens, and it does
not provide for a private cause of action.”); Quadra v. Superior Court of City
and County of San Francisco, 378 F. Supp. 605, 609 (N.D. Cal. May 16, 1974)
(“[18 U.S.C. § 243] . . . is a criminal provision prohibiting the exclusion of
persons from service on federal or state grand or petit juries ‘on account of

5

race, color, or previous condition of servitude . . . ’ and does not provide the
basis for a civil suit”). These counts of the complaint fail to state a claim upon
which relief may be granted. 28 U.S.C. § 1915(e)(B)(ii).
Counts 2, 3, 4, 7, 8, 9, 10 and 11 allege defendants Erickson and Klein
violated Mr. Voigt’s rights under the Civil Rights Act, 42 U.S.C. § 1983 et seq.2
“The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the
authority of state law.’ ” Parker v. Boyer, 93 F.3d 445, 447-48 (8th Cir. 1996)
(citing West v. Atkins, 487 U.S. 42, 49 (1988) (emphasis added).
Federal district judges and magistrate judges do not act under color of
state law but rather under authority of federal law. A claim these federal
judicial officials allegedly violated Mr. Viogt’s constitutional rights is examined
as a Bivens claim. Bivens v. Six Unknown Names Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Judges are entitled to absolute immunity from
civil liability for their judicial acts unless they acted “in the clear absence of all
jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 357 (1978). “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 . . . .” Id. at 356.

2

The complaint cites the removal provision for civil rights cases,
28 U.S.C. § 1443, but that statute does not independently create a civil right,
separate and apart from 42 U.S.C. § 1983 et seq.
6

United States District Judge Erickson and Magistrate Judge Klein had
jurisdiction to consider Mr. Viogt’s earlier claims. The fact Mr. Voigt
disapproved of their rulings does not invalidate that jurisdiction. If Mr. Voigt
wished to challenge Judge Erickson’s decisions, he had the statutory right to
file an appeal to the Court of Appeals for the Eighth Circuit. See Fed. R. App.
P. 4(a)(1). Mr. Voigt chose not to appeal those adverse decisions. Counts 2, 3,
4, 7, 8, 9, 10 and 11 of the complaint fail to state a claim upon which relief
may be granted. These counts also seek monetary relief against defendants
who are immune from such claims. 28 U.S.C. §§ 1915(e)(B)(ii) and (iii).
Mr. Voigt’s fifth claim against Judge Erickson and Judge Klein alleges
they engaged in a pattern of conduct in violation of 42 U.S.C. § 14141. That
section provides:
It shall be unlawful for any governmental authority, or any agent
thereof, or any person acting on behalf of a governmental authority,
to engage in a pattern or practice of conduct by law enforcement
officers or by officials or employees of any governmental agency with
responsibility for the administration of juvenile justice or the
incarceration of juveniles that deprives persons of rights, privileges,
or immunities secured or protected by the Constitution or laws of the
United States.
42 U.S.C. § 14141(a). The statute vests in the Attorney General of the United
States the right to file a civil action for any alleged violation. “Whenever the
Attorney General has reasonable cause to believe that a violation of paragraph
[a] has occurred, the Attorney General, for or in the name of the United States,
may in a civil action obtain appropriate equitable and declaratory relief to
7

eliminate the pattern or practice.” 42 U.S.C. § 14141(b). There is no private
right of redress for an alleged violation of 42 U.S.C. § 14141. See Inkel v.
Bush, No. 3:04CV69 (JBA), 2004 WL 2381747 at *3 (D. Conn. Oct. 19, 2004)
(“42 U.S.C. § 14141 contains no private right of action . . . .”); Rangel v.
Reynolds, 607 F. Supp. 2d 911, 929 n. 7 (N.D. Ind. 2009) (“Plaintiffs cite to 42
U.S.C. § 14141 . . . and . . . their arguments are unavailing as neither statute
offers Plaintiffs a private right of action under which they may sue
Defendants.”). This count of the complaint fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(B)(ii).
Mr. Voigt’s twelfth claim is that defendant Ansley violated the plaintiff’s
civil rights and constitutional rights under the Fourteenth Amendment.
(Docket 1-1, p. 39). That claim is premised on Mr. Ansley’s alleged failure to
send Mr. Voigt’s Federal Tort Claims Act (“FTCA”) filing to the Tort Claims
Section of the United States Department of Justice. Id. at ¶ 287. Mr. Voigt
acknowledges his tort claim was denied at the administrative level. Id. at ¶¶
197-200. On April 11, 2011, the Administrative Office of the United States
Courts advised Mr. Voigt by letter “[t]his will serve as official notification that
the Administrative Office of the United States Courts has denied in full your
tort claim dated January 14, 2011, for $3,600,000.00, arising from your
attempts at litigation in federal court.” Id. at ¶ 197. That letter also notified
Mr. Voigt of the process for pursuing a FTCA claim in federal district court. Id.
at ¶¶ 201 & 202.
8

Despite this notice, Mr. Voigt chose not to file suit against the United
States. Id. at ¶ 205. The Federal Tort Claims Act specifically declares: “The
United States shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a private individual
under like circumstances . . . .” 28 U.S.C. § 2674 (emphasis added).
“Congress passed the Federal Tort Claims Act (FTCA), a limited waiver of the
United States’s sovereign immunity, to permit persons injured by
federal-employee tortfeasors to sue the United States for damages in federal
district court.” Mader v. United States, 654 F.3d 794, 797 (8th Cir. 2011)
(emphasis added). See 28 U.S.C. § 1346(b)(1) (“the district courts . . . shall
have exclusive jurisdiction of civil actions on claims against the United States,
for money damages . . . for injury or loss of property . . . caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.”).
“[A]n action against the United States is the only remedy for injuries caused by
federal government employees acting within the scope of their employment,
regardless of whether the conduct in question was discretionary.” Heuton v.
Anderson, 75 F.3d 357, 359 (8th Cir. 1996) (emphasis added). This court has
no subject matter jurisdiction over a FTCA claim where an individual but not

9

the United States is named as a party-defendant. See 28 U.S.C. § 2679(b)(1).
Count 12 of the complaint fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(e)(B)(ii).
Mr. Voigt’s thirteenth claim against defendants Ansley, Dudgeon,
Chastain and Phipps alleges they violated Mr. Voigt’s rights under the Freedom
of Information Act, 5 U.S.C. § 552. The Act does not create a private cause of
action against individuals but rather allows suit in federal district court against
the agency which failed to comply with the disclosure obligations of the Act.
5 U.S.C. § 552(a)(4)(B). Count thirteen of the complaint fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(e)(B)(ii).
Accordingly, it is hereby
ORDERED that, pursuant to 28 U.S.C. §§ 1915(e)(2), plaintiff’s motion to
proceed in forma pauperis (Docket 1) is denied.
IT IS FURTHER ORDERED that Mr. Voigt’s proposed complaint (Docket
1-1) shall not be filed as it “fails to state a claim on which relief may be granted
. . . [and] seeks monetary relief against . . . defendant[s] who [are] immune from
such relief.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii), and (iii).
IT IS FURTHER ORDERED that the case is dismissed.
Dated January 11, 2012.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
10