Zierke v. Molsen

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GARY ZIERKE, Plaintiff, v. MATTHEW MOLSEN, and RICHARD G. KOPF, District Judge; Defendants.

No. 4:21CV3187

United States District Court, D. Nebraska

February 15, 2022

MEMORANDUM AND ORDER

John M. Gerrard United States District Judge

The plaintiff Gary Zierke ("Zierke") filed a Complaint on September 21, 2021. Filing 1. He has been granted leave to proceed in forma pauperis and paid the required filing fee on December 10, 2021. See Filing 9. The court now conducts an initial review of the plaintiffs Complaint^[1] to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Zierke an inmate at the Federal Correctional Institution Allenwood Medium, brings this action against United States District Court Judge Richard G. Kopf ("Judge Kopf) and Matthew Molsen ("Molsen"), who is alleged to have been a Deputy County Attorney for Hall County, Nebraska at all times relevant to this action but is currently an Assistant United States Attorney for the District of Nebraska.^[2] Filing 1 at 1; see Filing 4. Zierke alleges violations of his rights under the Fourth Amendment as well as due process and equal protection violations. Filing 1 at 5. As relief, Zierke "seeks to have charges filed against Matthew Molsen . . . and punitive damages in the amount of 200 million dollars." Filing 1 at 6.^[3]

Zierke alleges that Molsen "was involved in a raid" at Zierke's residence on February 14, 2008, before any charges were filed against Zierke, and Molsen "was present during the search of Zierke's residence without authority by way of warrant, state custom, statute, custom, rule or regulation." Filing 1 at 3, 5. Molsen allegedly "conspired with county law enforcement" and "provided advice to local law enforcement Rick Conrad regarding the affidavit in support of [a search of] Zierke's residence." Filing 1 at 2. Zierke claims Molsen "was not acting as an advocate for the state, but as [an] investigator who did not have authority to enter Zierke's home." Filing 1 at 5. Zierke further alleges Molsen "withheld exculpatory evidence [because] his mere presence at Zierke's residence without authority was suppression testimonial evidence that could have been used in pretrial." Filing 1 at 4.

Zierke claims Judge Kopf "had authority to prevent Matthew Molsen from violating Zierke's rights under the State's Constitution, Federal Constitution, and Rules of Fed. Crim. P. 41 and title 3109. Judge Kopf was made aware that Matthew Molsen was present during the search of Zierke's residence" and "knew Mr. Molsen was acting outside the scope of his duties but did nothing to prevent the constitutional violations." Filing 1 at 4. Instead, Zierke alleges Judge Kopf "conspired with Matthew Molsen knowing being in Zierke's residence was outside his authority." Filing 1 at 5.

After filing his Complaint, Zierke filed an Affidavit, which the court considers supplemental to his Complaint. Filing 12. In his Affidavit, Zierke reiterates his conspiracy claim against Judge Kopf and Molsen and also complains that Judge Kopf wrongfully denied Zierke's second motion for compassionate release on October 19, 2021, in United States v. Zierke, No. 4:08-cr-03067-RGK-DLP (D. Neb.) (hereinafter "4:08CR3067"). Zierke alleges Judge Kopf allowed altered evidence in Zierke's federal criminal trial and relied on conduct for which Zierke was never convicted in denying his motion for compassionate release. Zierke asks "this court to make a full ruling on this matter." Filing 12 at 3.

The court's records reflect that on January 16, 2009, a jury found Zierke guilty of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846, and distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). Filing 117, Case No. 4:08CR3067. Molsen represented the United States as a Special Assistant U.S. Attorney in Zierke's criminal case. See Filing 1, Case No. 4:08CR3067. Judge Kopf sentenced Zierke to 360 months' imprisonment followed by concurrent terms of five years and three years of supervised release. Filing 151, Case No. 4:08CR3067. Zierke's convictions and sentences were affirmed on appeal. Filing 172, Case No. 4:08CR3067; United States v. Zierke, 618 F.3d 755 (8th Cir. 2010).^[4]

II. APPLICABLE STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.").

"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, NA., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)).

However, "[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

III. DISCUSSION OF CLAIMS

A. Statutory Grounds for Claims

Zierke purports to bring his claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 and 18 U.S.C. § 242. However, most of these federal statutes do not serve as a proper basis for his claims.

1. 18 U.S.C. § 242

Zierke has no private right of action under 18 U.S.C. § 242, which establishes criminal liability for certain deprivations of civil rights. See Carter v. Muldoon, No. 8:17CV319, 2018 WL 2049841, at *4 (D. Neb. May 1, 2018) (citing cases and dismissing plaintiffs claims under 18 U.S.C. §§ 241, 242, and 245 with prejudice "because those sections do not confer a private right of action"); Horde v. Elliot, No. 17-CV-800 (WMW/SER), 2018 WL 987683, at *10 (D. Minn. Jan. 9, 2018), report and recommendation adopted, No. 17-CV-0800 (WMW/SER), 2018 WL 985294 (D. Minn. Feb. 20, 2018) ("Horde's claims arising under 18 U.S.C. § 242 also necessarily fail to state a claim because it is well-settled that 18 U.S.C. § 242 does not provide a private right of action."); Shahin v. Darling, 606 F.Supp.2d 525, 538 (D. Del.), aff'd, 350 Fed.Appx. 605 (3d Cir. 2009) ("Plaintiff cannot bring criminal charges against defendants through a private lawsuit, and [18 U.S.C. §§ 241-242] do not give rise to a civil cause of action.").

Moreover, to the extent Plaintiff requests that criminal charges be brought against Molsen, Plaintiff does not state a federal claim, as a private plaintiff cannot force a criminal prosecution because the authority to initiate criminal charges lies only with state and federal prosecutors. See Nieves v. Bartlett, 139 S.Ct. 1715, 1733 (2019) (Gorsuch, J., concurring in part and dissenting in part) ("the decision whether to institute criminal charges is one our Constitution vests in state and federal executive officials"); United States v. Batchelder, 442 U.S. 114, 124 (1979) ("Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion."); Cragoe v. Maxwell, No. CIV 11-4188, 2012 WL 462960, at *2 (D.S.D. Feb. 13, 2012) ("If [the pro se plaintiff] believes criminal charges are appropriate for whatever reason, this Court is not the proper entity to initiate those proceedings.") (collecting cases); Blechinger v. Sioux Falls Hous. & Redevelopment Comm'n, No. CIV. 12-4004, 2012 WL 174653, at *3 (D.S.D. Jan. 20, 2012) (neither pro se plaintiff nor the court can charge defendant with a crime because "[w]hether to prosecute and what criminal charges to file or bring are decisions that generally rest in the prosecutor's not the court's discretion") (internal quotation marks and citation omitted).

2. 42 U.S.C. § 1985

Section 1985 "provides a cause of action for damages sustained as a result of conspiracies to obstruct justice, 42 U.S.C. § 1985(2), as well as conspiracies to deprive individuals of equal privileges and immunities and equal protection under the law, 42 U.S.C. § 1985(3)." Kelly v. City of Omaha, 813 F.3d 1070, 1077 (8th Cir. 2016). "In order to state a claim for conspiracy under § 1985, a plaintiff 'must allege with particularity and specifically demonstrate with material facts that the defendants reached an agreement.'" Id. at 1077-78 (quoting City of Omaha Emps. Betterment Ass'n v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989)). "This standard requires that 'allegations of a conspiracy [be] pleaded with sufficient specificity and factual support to suggest a meeting of the minds directed toward an unconstitutional action.'" Id. (quoting Nelson v. City of McGehee, 876 F.2d 56, 59 (8th Cir. 1989)). While Zierke alleges that Judge Kopf and Molsen conspired to violate his rights, he fails to allege particular and specific facts showing that any of the defendants' alleged misconduct arose from any meeting of minds or an agreement. He has therefore failed to state a plausible claim for relief under § 1985.

3. 42 U.S.C. § 1986

"In...