Zabriskie v. Marsh

Filing 16

REVISED REPORT AND RECOMMENDATIONS re 3 Complaint: magistrate judge recommends that the complaint be dismissed with respect to claims brought pursuant to 18 USC 241, 245 and 42 USC 1983, 1985. As to Counts II and III brought pursuant to USC 3631, the Court recommends that within 14 days of the date of this report that plaintiff provide a more definite statement. Objections to R&R due by 11/16/2010. Signed by Magistrate Judge Brooke C. Wells (alt)

_____________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
_____________________________________________________________________

RICHARD S. ZABRISKIE,
Plaintiff,

:
:
Civil No. 2:10-cv-00676

vs.

:

GRANT MARSH dba Sunwest
:
Management aka Sun River St. George
Community Council Association, Inc., a
Utah non-profit corporation; and PAUL
MARSH dba Sunwest Management aka
Sun River St. George Council
Association, Inc., a Utah non-profit
corporation,

MEMORANDUM DECISION &
REVISED REPORT &
RECOMMENDATION
JUDGE DALE KIMBALL
MAGISTRATE JUDGE BROOKE C.
WELLS

Defendants.
_____________________________________________________________________

On October 13, 2010, this Court signed an Order recommending to the District
Court that defendants’ motion to dismiss be granted based upon plaintiff Richard
Zabriskie’s failure to respond to the Court’s Order To Show Cause.1 However, due to a
docketing delay, it was not until after issuance of the Report & Recommendation that
the Court determined Mr. Zabriskie had in fact filed an objection and responded to the

1

Docum ent Num ber 15.

Order.2 Consequently, the Court’s October 14, 2010, Report & Recommendation is
hereby vacated.
Now, after taking into consideration plaintiff’s responsive pleading, the Court
issues its “revised” Report & Recommendation, recommending to the District Court that
defendants’ motion to dismiss be granted in part pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief may be granted, and denied in part pursuant to Rule
12(e) requesting a more definite statement.
I. THE COMPLAINT
On July 19, 2010, pro se plaintiff Richard Zabriskie filed his “Civil Rights
Complaint” asserting federal question jurisdiction under 18 U.S.C. § § 241, 245 and 42
U.S.C. § § 1983, 1985 and 3631.3 Plaintiff’s claims stem from what he characterizes as
a conspiracy to “injure, oppress, intimidate my free exercise of enjoyment of my rights
and privileges secured to me based upon the Constitution of the laws of the U.S.”4
Mr. Zabriskie contends that defendants Paul Marsh and Grant Marsh, as
manager, agent/owner of SunWest Management, held a meeting wherein they
threatened and intimidated plaintiff with accusations of “alleged violations of CCRR’s of
SunRiver Community”.5 Additionally, plaintiff asserts that defendants “continue unlawful
use of force, threaten, intimidate, interfere with me and my mother Beverly Zabriskie’s
housing rights, based upon class sex handicapped familial status [sic], national origin,

2

Docum ent Num ber 14.

3

Docum ent Num ber 3.

4

Docum ent Num ber 3, pg. 3.

5

Id. at pg. 4.

2

threats to put lien on my mother’s house if I don’t move or concede to something in
writing.”6 As a result of defendants’ alleged slander, harassment and threats, Mr.
Zabriskie claims an “injury has occurred”.7
II. PENDING MOTION AND DISCUSSION
On August 18, 2010, defendants Paul Marsh and Grant Marsh filed their
currently pending “Rule 12(b)(6) Motion To Dimiss Or, In The Alternative, Rule 12(e)
Motion For A More Definite Statement” requesting that the complaint be dismissed in its
entirety or that plaintiff be required to provide additional information.8
Each claim set forth in Mr. Zabriskie’s complaint is addressed further below.
A. Failure to State a Claim Upon Which Relief May Be Granted
1. Claims Under Criminal Statutes: 18 U.S.C § § 241, 245
A private individual may sue under a federal statue only when Congress
intended to create a private right of action.9 In this case, Mr. Zabriskie asserts

6

Id. at pg. 4.

7

Id. at. pg. 5.

8

Docum ent Num ber 7.

9

Gonzaga Univ. v. Doe, 536 U.S. 273, 284-84 (2002)(“where the text and structure of a statute
provide no indication that Congress intends to create new individual rights, there is no basis for a private
suit”)).

3

violations of his rights under 18 USC § § 24110 and 245.11 These criminal statutes do
not provide for a private right of action under which plaintiff may sue and are generally
utilized in prosecutions by the government and not by private citizens.12
Therefore, the Court recommends that Mr. Zabriskie’s claims under
18 U.S.C. § § 241 and 245 be dismissed for failure to state a claim upon which relief
may be granted.
2. Claims Under Civil Rights Statues: 42 U.S.C. § § 1983, 1985 and 3631
a. Claims Under 42 U.S.C. § 1983
Federal statute 42 U.S.C. § 1983 provides:

10

18 U.S.C. § 241 entitled “Conspiracy against rights” provides,
[i]f two or m ore persons conspire to injure, oppress, threaten, or intim idate
any person in any State, Territory, Com m onwealth, Possession, or District in the free exercise or
enjoym ent of any right or privilege secured to him by the he Constitution or laws of the United
States, or because of his having so exercise the sam e; . . . .[t]he shall be fined under this title or
im prisoned not m ore than ten years, or both. . .

11

18 U.S.C. § 245 entitled “Federally protected activities” provides penalties for persons who
injure, intim idate, interfere (or attem pt to do so) with any person or class of persons’:
(A) voting or cam paigning;
(B) right to use program s, services or facilities adm inistered by the United States;
(C) right to be em ployed by the United States;
(D) service or attendance with any court in connection with jury duty
(E) right to participate in the benefits of any program or activity receiving Federal
financial assistance.
Additionally, the statue provides crim inal penalties for any person who interferes with another
individual’s
(A) enrollm ent in any public school or college;
(B) participation in or use of program s or facilities of the United States;
(C) em ploym ent by any private em ployer or any agency of any Sta te or
subdivision;
(D) service or attendance upon any court in connection with possible service as a juror;
(E) traveling in or using any facility of interstate com m erce; and
(F) enjoym ent of public establishm ents.
12

Kelly v. Rockefeller, 69 Fed. Appx. 414, 415 (10th Cir. 2003) (indicating that 18 U.S.C. § § 241
and 245 are crim inal statutes that are explicitly reserved for the “right of prosecution to governm ent
officials” and do not provide for private civil causes of action)); see generally, Diam ond v. Charles, 476
U.S. 54, 64-65, 90 L. Ed. 2d 48, 106 S. Ct. 1697 (1986).

4

Every person who, under color of any statute, ordinance,
regulation,custom or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress. . .13
Thus, in order to properly plead a claim under Section 1983, a plaintiff must allege: (1)
conduct by a person, (2) who acted under color of state law, (3) which cause a
deprivation of a federally protected right.14
In his complaint, Mr. Zabriskie identifies defendants as “part owners [and]
manager of SunWest Management (AKA) SunRiver St George Community Association,
Inc, a Utah non-profit corporation” who engaged in slander and defamation against
him.15

There is no allegation that defendants acted under color of state law or

deprived plaintiff of any federally protected right. Consequently, Mr. Zabriskie fails to
adequately plead a § 1983 claim and the Court recommends that his claim be
dismissed.
b. Claims Under 42 U.S.C. § 198516
Section 1985(3) provides for an action to be brought by an individual harmed by
a conspiracy that was formed “for the purpose of depriving, either directly or indirectly,

13

42 U.S.C. § 1983.

14

W est v. Atkins, 487 U.S. 42, 48 (1988).

15

Docum ent Num ber 3, pg. 5.

16

Mr. Zabriskie fails to identify under which provision of 42 U.S.C. § 1985 he pursues a cause of
action. The Court assum es that plaintiff brings his claim pursuant to § 1985 (3) as based upon the
allegations contained in the com plaint subsections (1) and (2) are not applicable.

5

any person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws.”17
42 U.S.C. does not create a separate substantive right, but instead confers
remedies for enforcement of rights arising under federal law.18 Further, Section 1985
does not apply to all tortious interferences.19 Rather, plaintiff must allege “some racial,
or perhaps otherwise class-based invidiously discriminatory animus behind the
conspirators’ action.”20 Thus, the conspiracy alleged must contain: (1) some “racial, or
perhaps otherwise class-based invidiously discriminatory animus” and (2) an
interference” with rights that are protected against private, as well as official,
encroachment.”21
Mr. Zabriskie’s complaint is devoid of any of the allegations necessary to support
a Section 1985 claim. Consequently, the Court recommends that plaintiff’s claim be
dismissed.
c. Claims Under 42 § 363
Count II of Mr. Zabriskie’s complaint is brought pursuant to Title 42 U.S.C
Section 363 which he entitles “Criminal Interference with Right to fair housing [sic].”22
Upon review of the Code, the Court concludes that no such provision exists under Title
17

42 U.S.C. § 1985(3).

18

Howard v. State Dep’t of Highways, 478 F.2d 581 (U.S. App 1973).

19

Griffin v. Breckenridge, 403 U.S. 88, 101-102 (1971).

20

Id..at 102.

21

Bray v. Alexandria W om en’s Health Clinic, 506 U.S. 263, 267-268 (U.S. 1993)(setting forth the
requirem ents to prove a private conspiracy in violation of Subsection (3) of Section 1985)).
22

Docum ent Num ber 3, pg. 4.

6

42. It appears, however, that Mr. Zabriskie may have intended to bring this claim, like
Count III, pursuant to Title 42 U.S.C. Section 3631. Accordingly, the Court will analyze
both Court II and Count III of plaintiff’s complaint under Section 3631.
d. Claims Under 42 U.S.C. § 3631
Section 3631 is a violations and penalties provision under the Fair Housing Act.
It prohibits willful interference with an individual’s housing rights based upon race, color,
religion, sex, handicap, familial status, or national origin.23 In relevant part it states that
penalties may be imposed against:
Whoever, whether or not acting under color of law, by force
or threat of force willfully injures, intimidates or interferes with,
or attempts to injure, intimidate or interfere with—
(a) any person because of his race, color, religion, sex, handicap. . .
familial status. . . , or national origin and because he is or has been
selling, purchasing, renting, financing, occupying, or contracting, or
negotiating for the sale, purchase, rental, financing or occupation of
any dwelling. . . .24
Based upon plaintiff’s current complaint, the Court is unable to discern the
relationship between plaintiff’s Fair Housing Act claim, and the allegations stated
therein. There is some reference, however unclear, to some type of threats or
intimidation involving Mr. Zabriskie’s housing rights and based upon “class sex
handicapped familial status, national origin [sic]”. For this reason, pursuant to Rule
12(e), the Court recommends that Mr. Zabriskie provide a more definite statement as to

23

42 U.S.C. § 3631.

24

42 U.S.C. § 3631.

7

Counts II and III of his complaint.25
More specifically, with respect to plaintiff’s § 3631 claim the Court requests he
provide clear allegations as to: i) what force or threat of force has injured, intimidated or
interfered with his constitutionally protected right; ii) what actions of defendant Grant
Marsh and defendant Paul Marsh have caused such violation; iii) whether and what
protected class plaintiff is a member of; iv) what are the constitutional rights of which
plaintiff has been deprived; and v) what acts were discriminatory such that plaintiff’s
protected class been treated differently than other classes.
IV. CONCLUSION
For all of the aforementioned reasons this Court now issues this report,
recommending that Mr. Zabriskie’s complaint be dismissed with respect to plaintiff’s
claims brought pursuant to 18 U.S.C. § § 241, 245 and 42 U.S.C. § § 1983, 1985. As
to Counts II and III brought pursuant to U.S.C. § 3631, the Court recommends that
within fourteen (14) days of the date of this report that plaintiff provide a more definitie
statement.
Copies of the foregoing report and recommendation are mailed to all parties who
are hereby notified of their right to object. Any objection must be filed within fourteen
(14) days after being served with a copy.26 Failure to object may constitute a waiver of
objections upon subsequent review.

25

Federal Rule of Civil Procedure 12(e) states in relevant part that, “[a] party m ay m ove for a m ore
definitive statem ent of a pleading to which a responsive pleading is allowed but which is so vague or
am biguous that the party cannot reasonably prepare a response. . . If the court orders a m ore definite
statem ent and the order is not obeyed within 14 days after notice of the order or within the tim e the court
sets, the court m ay strike the pleading or issue any other appropriate order.”
26

Fed. R. Civ. P. 72(b)(2).

8

DATED this

day of November, 2010.

BY THE COURT:

______________________
Brooke C. Wells
United States Magistrate Judge

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