United States District Court, D. Hawaii
DAVID R. MYRLAND, Plaintiff,
HELEN GILLMOR; REBECCA ANN PERMUTTER; DEREK KIM, Defendants.
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C. §
E. Kobayashi, United States District Judge.
the Court is pro se Plaintiff David R. Myrland's
(“Plaintiff”) Verified Criminal Complaint
(“Complaint”), filed March 27, 20178. [Dkt. no.
1.] Plaintiff alleges Senior United States District Judge
Helen Gillmor, Assistant United States Attorney Rebecca Ann
Perlmutter, and Probation Services Officer Derek Kim
(“Defendants”) have conspired to kidnap and
confine Royal Lamarr Hardy at the Federal Detention Center in
Honolulu, Hawai`i, in violation of 18 U.S.C. §§ 241
and 1201. Upon screening, the Complaint is hereby dismissed
without leave to amend.
April 14, 2002, an Information was filed in United States
v. Royal Lamarr Hardy, CR 02-00133(01) HG
(“Hardy”). Hardy was convicted of two
counts of conspiracy to defraud the United States, in
violation of 18 U.S.C. § 371, and three counts of
failure to file an income tax return, in violation of 26
U.S.C. § 7203. He was sentenced to a total of 156 months
of imprisonment and three years of supervised release.
[Hardy, Judgment in a Criminal Case, filed 9/15/05
(dkt. no. 636), at 1-3.] On March 15, 2018, while on
supervised release, Hardy was brought before a magistrate
judge for an initial appearance for violation of his terms of
release. A hearing on an order to show cause why his
supervised release should not be revoked was scheduled before
Judge Gillmor. [Id., Minutes, filed 3/15/18 (dkt.
no. 845).] A preliminary hearing was scheduled for March 16,
2018, but it was continued to March 29, 2018. Hardy was taken
into custody on March 16, 2018. [Id., Minutes, filed
3/16/18 (dkt. no. 852).] Perlmutter and Kim have participated
in the proceedings in Hardy. Plaintiff's
Complaint in the instant case alleges Defendants “have
acted in concert to confine Mr. Hardy for not providing
signatures the Court has not ordered him to provide.”
[Complaint at pg. 2.] Plaintiff attempts to bring claims
against Defendants for violations of 18 U.S.C. §§
241 and 1201, and perhaps 18 U.S.C. § 4.
Plaintiff has not paid a filing fee, regardless of whether he
is a prisoner, the Court must screen his Complaint pursuant
to 28 U.S.C. § 1915(e)(2). Section 1915(e)(2)(B)
provides that “the court shall dismiss the case at any
time if the court determines that . . . the action . . . (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.” A
dismissal under § 1915(e)(2)(B) is governed by the same
standard as a dismissal under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Rosati v. Igbinoso, 791
F.3d 1037, 1039 (9th Cir. 2015). Dismissal for failure to
state a claim is appropriate if the facts as pleaded fail to
state a claim for relief that is “plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation and quotation marks omitted).
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
If two or more persons conspire to injure, oppress, threaten,
or intimidate any person in any State . . . in the free
exercise or enjoyment of any right or privilege secured to
him by the Constitution or laws of the United States, or
because of his having so exercised the same; or If two or
more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his
free exercise or enjoyment of any right or privilege so
secured- They shall be fined under this title or imprisoned
not more than ten years, or both; and if death results from
the acts committed in violation of this section or if such
acts include kidnapping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse,
or an attempt to kill, they shall be fined under this title
or imprisoned for any term of years or for life, or both, or
may be sentenced to death.
Whoever, having knowledge of the actual commission of a
felony cognizable by a court of the United States, conceals
and does not as soon as possible make known the same to some
judge or other person in civil or military authority under
the United States, shall be fined under this title or
imprisoned not more than three years, or both.
extent Plaintiff attempts to allege claims against Defendants
for violations of § 4 and § 241, the Complaint
fails to state a plausible claim for relief because neither
§ 241 nor § 4 creates a private cause of action.
See Allen v. Gold Country Casino, 464 F.3d
1044, 1048 (9th Cir. 2006) (“We affirm the dismissal of
Allen's claims under 18 U.S.C. §§ 241 and 242
because these are criminal statutes that do not give rise to
civil liability.”); Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980) (same); Hysell v.
Schwarzenegger, No. 1:10-cv-01233-AWI-GBC (PC), 2012 WL
1130609, at *3 (E.D. Cal. Mar. 30, 2012) (finding no private
cause of action under § 4).
§ 1201(a) states - subject to exceptions inapplicable
here, “[w]hoever unlawfully seizes, confines,
inveigles, decoys, kidnaps, abducts, or carries away and
holds for ransom or reward or otherwise any person . . .
shall be punished by imprisonment for any term of years or
for life and, if the death of any person results, shall be
punished by death or life imprisonment.”
Plaintiff's attempt to state a claim for violation of
§ 1201 fails to state a plausible claim for relief.
See Harnden v. Croswell-Lexington Cmty. Sch., No.
15-cv-12738, 2016 WL 2731188, at *2 (E.D. Mich. May 11, 2016)
(“there is no private right of action for purported
violations of the Federal Kidnapping Act” (citing
Monroe v. McNairy Cnty., Tenn., 850 F.Supp.2d 848,
876 (W.D. Tenn. Feb. 6, 2012) (“[T]he Federal
Kidnapping Act is a criminal statute, and there is no
indication that Congress intended to create a private right
of action for violations of its provisions.”);
Giano v. Martino, 673 F.Supp. 92, 95 (E.D.N.Y. 1987)
(“[T]he Federal Kidnapping Act was never intended to
confer rights on the victim of a kidnapping, and does not do
so by its language.”), aff'd, 853 F.2d
1429 (2d Cir. 1987) (Table)).
claims, which allege violations of §§ 4, 241, and
1201, are therefore dismissed. The Ninth Circuit has held,
“[u]nless it is absolutely clear that no amendment can
cure the defect, . . . a pro se litigant is entitled to
notice of the complaint's deficiencies and an opportunity
to amend prior to dismissal of the action.” Lucas
v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
In this case, it is absolutely clear no amendment can cure
the defects in the Complaint because the criminal statutes
Plaintiff relies upon do not support civil liability. ...