Zajac v. Balkema et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS as to 9 Complaint filed by Thomas James Zajac, 25 Order Adopting Report and Recommendations. Signed by Judge Clark Waddoups on 9/25/19. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

THOMAS JAMES ZAJAC,

ORDER ADOPTING AND APPROVING
REPORT AND RECOMMENDATION
TO DISMISS CLAIM

Plaintiff,
v.

Case No. 2:17-cv-304
JANE BALKEMA, et. al,
Defendants.

Judge Clark Waddoups

Plaintiff Thomas James Zajac filed a pro se complaint in this action originally in the
United States District Court for the Northern District of Illinois. On April 18, 2017, the case was
transferred to the District of Utah. Mr. Zajac was allowed to proceed after paying an initial
partial filing fee under 28 U.S.C. Section 1915. The case was eventually assigned to Magistrate
Judge Evelyn Furse who on November 26, 2018 filed a Report and Recommendation to Dismiss
for Failure to Sate a Claim. (ECF No. 20). The Report included notice that any objection must
be filed within 14 days as required by 28 U.S.C. §636(b) and Fed. R. Civ. P. 72(b). The court
granted Mr. Zajac an extension until February 11, 2019. Mr. Zajac did not file an objection, but
on February 12, 2019, he filed what is captioned as a Civil Rights Complaint (42 U.S.C § 1983,
§1985). The filing was docketed as an Amended Complaint. The new filing does not address
objections to the Report and Recommendation and, with some deletions, appears to largely be a
verbatim restatement of the assertions made in the first complaint (ECF 9).
Mr. Zajac previously filed suit pro se under 28 U.S.C. § 2255 with standby counsel
seeking to vacate his conviction for crimes associated with a bombing of the Salt Lake City
library in 2006. As grounds for relief he asserted (1) prosecutorial misconduct, (2) mishandling
of the evidence (3) failure to prove each element of the crime, and (4) ineffective assistance of
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counsel. (Case No. 2:12-cv-355, ECF 105). The court held an evidentiary hearing on March 26,
27 and April 1, 2014. After briefing and oral argument, the court issued a 42 page decision
analyzing and denying Mr. Zajac’s § 2255 claims. Much of Mr. Zajac’s complaint in the action
cites to the court’s decision in the § 2255 case. Mr. Zajac appealed and, in a 21-page decision,
the Tenth Circuit Court of Appeals affirmed. (Case No. 2:12-cv- 355, ECF 137). The United
States Supreme Court denied Mr. Zajac’s petition of a writ of certiorari on October 30, 2017.
(Case No. 2:12-cv- 355, ECF 140). Mr. Zajac petitioned the Tenth Circuit to allow him to file a
Successive Motion un § 2255. The Tenth Circuit denied that petition on May 13, 2019. (Case
No. 2:12-cv- 355, ECF 141). Mr. Zajac’s arguments seeking to overturn his conviction have
been heard, well considered and repeatedly rejected.
Mr. Zajac did not style his “Amended Complaint” as an objection, and the court can
sustain the Report and Recommendation on the ground that no objection was filed. Even
accepting the Amended Complaint as an objection, Mr. Zajac’s complaint fails. There is nothing
in the filing to suggest error in the analysis of conclusion of the Magistrate Judge. For the
reasons stated in the Report and Recommendation, Mr. Zajac has failed to allege a cognizable
Bivens Action and his claims for ineffective assistance of counsel fail because his counsel were
not federal actors. Mr. Zajac’s claims also fail as an attempt to repeat the same arguments but
avoid the prohibition on successive filings. The court adopts fully the reasoning of the Report
and Recommendation and dismisses the Complaint pursuant to 28 U.S.C. § 1915 for failure to
state a claim upon which relieve can be granted.

.

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DATED this 25th day of September, 2019.

The Honorable Clark Waddoups
United States District Court

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