Szeklinski v. Neary et al

Filing 3

ORDER signed by Judge Rudolph T Randa on March 12, 2007 denying 2 Motion for Leave to Proceed in forma pauperis. This matter is dismissed in its entirety. (cc: via US Mail to Deel Szeklinski)(Randa, Rudolph)

Szeklinski v. Neary et al

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Case 2:07-cv-00222-RTR

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UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

D E E L SZEKLINSKI, P l a in tif f , C a s e No. 07-C-222 -vsW IL L I A M T. NEARY and Spouse (Jane Doe I), U n ite d States Trustee, M A R Y KAY McSHERRY and Spouse (John Doe II), B a n k ru p tcy Analyst, D A V ID W. ASBACH and Spouse (Jane Doe III), A s s is ta n t United States Trustee, and C R A IG CONNER and Spouse (Jane Doe IV), p r iv a te individual,

Defendants.

D E C IS IO N AND ORDER

T h e plaintiff, Deel Szeklinski ("Szeklinski"), filed a pro se complaint alleging that the a b o v e -c a p tio n e d defendants engaged in a conspiracy which caused him to lose two Harley D a v id s o n motorcycles in Chapter 7 bankruptcy. Szeklinski also requested leave to proceed in forma pauperis ("IFP"), which the Court now considers. T o authorize a litigant to proceed IFP, the Court must make two determinations: (1) w h e th e r the litigant is unable to pay the costs of commencing the action; and (2) whether the a c tio n warrants dismissal because it is frivolous or malicious, fails to state a claim on which re lie f may be granted, or seeks monetary relief against a defendant who is immune from re lie f . See 28 U.S.C. §§ 1915(a)(1) & (e)(2).

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P la in tif f alleges that he filed a Chapter 7 bankruptcy action on or about April 7, 2006. H e further alleges that defendant Craig Connor ("Connor"), a private individual, "knowingly b ro u g h t forth fraudulent ownership information concerning two Harley Davidson Motor C yc le s to David Asbach, and Mary Kay McSherry, in which Craig Connors stated that the P la in tif f was still in ownership of said motor cycles in violation of the United [S]tates B a n k ru p tc y Code." (Complaint, Cause of Action, ¶ 3). Szeklinski requests $10,000,000.00 in compensatory and punitive damages from each defendant. B an k ru p tcy trustees are entitled to quasi-judicial immunity for carrying out the orders o f the Bankruptcy Court. See Lerch v. Boyer, 929 F. Supp. 319, 323 (N.D. Ind. 1996). A c c o rd in g ly, defendants William Neary (United States Trustee), David Asbach (Assistant U n ited States Trustee), and Mary Kay McSherry (Bankruptcy Assistant) are all entitled to im m u n ity. See also Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir. 1986) (" [ A ] trustee in bankruptcy or an official acting under the authority of the bankruptcy judge, is entitled to derived judicial immunity because he is performing an integral part of the ju d ic ia l process"). Connor is not an officer of the Trustee, so the Court will address p la in tif f 's claim against him separately. P lain tiff alleges that Connor engaged in a conspiracy with the Trustee defendants to v io la te his constitutional rights. Plaintiff cites 42 U.S.C. §§ 1983 and 1985, but those statutes a d d re ss constitutional violations made under color of state law, not federal law, as alleged h e re . See Lovlace v. Whitney, 684 F. Supp. 1438, 1441 (N.D. Ill. 1988). Plaintiff also cites

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1 8 U.S.C. §§ 241 and 242, but those are criminal statutes which do not provide a private c a u s e of action. Id. P la in tif f 's complaint can be construed as alleging a Bivens-type claim against Connor f o r acting in conspiracy with federal officers. See Bivens v. Six Unknown Named Agents of F e d . Bureau of Narcotics, 403 U.S. 388, 397 (1971) (plaintiff may seek money damages f ro m individual federal officers acting under color of federal law). The viability of such a c la im appears to be an unsettled issue. See Lovelace, 684 F. Supp. at 1442 (court will " a ss u m e that if there is a sufficient allegation of conspiracy between a federal actor and p riv a te individuals, then a plaintiff may maintain a Bivens action against a private party"). E v en assuming that such a claim is legitimate, Szeklinski's conspiracy allegations are c o n c lu s o ry. While Szeklinski uses the term "conspiracy" in his complaint, the allegations f a il to suggest the existence of any agreement between Connor and the Trustee defendants to deprive Szeklinski of his federal constitutional rights. "Where the facts in the complaint a re vague, [conclusory] and include no overt acts reasonably related to the promotion of the a lle g e d conspiracy the complaint fails to state a claim based on conspiracy. Additionally, the f a c tu a l allegations must suggest a `meeting of the minds' between the alleged conspirators." K a u fm a n n v. United States, 876 F. Supp. 1044, 1051 (E.D. Wis. 1995); see also Hanania v. L o r e n - M a l te s e , 212 F.3d 353, 356 (7th Cir. 2000) (a private actor can have acted under color o f law if the plaintiff establishes that "(1) the private individual and a state official reached a n understanding to deprive the plaintiff of her constitutional rights and (2) the private ind ividu al was a willful participant in joint activity with the state or its agents").

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A c c o rd in g ly, the complaint fails to state a claim as a matter of law. See Lovelace, 684 F. S u p p . at 1443 ("Lovelace's claim against Hall fails under the `color of law' requirement. W h i le the complaint alleges a conspiracy between Hall, Whitney and Turow, the federal p ro s e c u to r, it does so in conclusory terms. `Conclusory pleadings of a conspiracy must be d ism issed '"). T h e complaint also alleges that Connor "caused a federal felony, by the invasion and thef t of documentation, online, from within Plaintiff's computer." (Complaint, Parties, ¶ 4). O n c e again, federal criminal statutes do not provide a private cause of action. Moreover, to th e extent that Szeklinski attempts to state a common law claim for theft or conversion, the C o u r t lacks subject matter jurisdiction over state law claims. The parties are not diverse, so th e Court lacks diversity jurisdiction. See 28 U.S.C. § 1332(a). F in a lly, the complaint identifies each defendants' spouse as additional defendants in th is matter. Plaintiff alleges that "each of the fictitiously named defendants is responsible in some manner for the occurrence herein alleged, and share under Wisconsin State Marital p ro p e rty Law equal liability for Plaintiff's damages as herein alleged and were caused by th e ir spouse's illegal conduct." (Complaint, Parties, ¶ 5). Plaintiff does not allege that any o f the defendants' spouses participated in the alleged constitutional violations. Accordingly, S z e k lin s k i cannot proceed with claims against those unnamed individuals. Moreover, the u n d e rlyin g claims fail as a matter of law, so there can be no derivative liability in any event.

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N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. S z e k l in s k i 's motion for leave to proceed IFP [Docket No. 2] is DENIED; and T h i s matter is DISMISSED in its entirety.

D a te d at Milwaukee, Wisconsin, this 12th day of March, 2007. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge

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