Gumber v. Fagundes, 21-cv-03155-JCS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJOSEPH C. SPERO Chief Magistrate Judge
Docket Number21-cv-03155-JCS
PartiesSTEPHANIE ANN GUMBER, Plaintiff, v. KEITH FAGUNDES, et al., Defendants.
Decision Date03 July 2021


KEITH FAGUNDES, et al., Defendants.

No. 21-cv-03155-JCS

United States District Court, N.D. California

July 3, 2021


JOSEPH C. SPERO Chief Magistrate Judge


Plaintiff Stephanie Ann Gumber brings this action pro se. The Court has granted Gumber's application to proceed in forma pauperis and therefore is required to review the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Gumber has consented to the jurisdiction of the undersigned magistrate judge, see dkt. 8 at ECF p. 5, but Defendants have not been served or consented to magistrate jurisdiction. Because Gumber has filed a Motion for Emergency Injunction, see dkt. 10, this case will be reassigned to a district court judge with the following Report and Recommendation.


In addition to her complaint, Gumber has filed two motions that are currently pending. The first is described as a petition for removal. Dkt. 8. (“Motion to Remove”). The second is a Motion for Emergency Injunction.

A. Complaint

The factual allegations in the Complaint are difficult to follow. From what the undersigned can glean from the Complaint, this case appears to be based on an underlying criminal case against the plaintiff in California state court, in the Criminal Division of Kings County Superior Court (“the State Court action”). Plaintiff appears to assert claims against Assistant District Attorneys Keith Fagundes, “John Doe” Johnson and “John Doe” Kylo based on vaguely alleged constitutional violations, including the court's denial of a motion challenging the jurisdiction of the Superior Court that Plaintiff filed in that case. See Complaint at ECF pp. 2-3. In particular, she alleges as follows:

Plaintiff was charged in State court with violations of California Statutes and Codes by Defendant. Plaintiff submitted a jurisdictional challenge and a demand to prove the constitutionality of the statutes codes. Defendant failed to prove jurisdiction and failed to prove constitutionality of statutes codes used against Plaintiff in State Court. This is a direct violation of the 22 supreme court decisions given to court and Defendant (see exhibit A) which says once jurisdiction is challenged it must be proven on the record and never attempted to prove the constitutionality of statutes codes. Plaintiff submitted evidence that statutes codes are unlawful and unconstitutional. Plaintiff proved in the court hearing that the State of California is a corporation for profit, that the court is a military court and statutes codes are military law. Plaintiff demanded a trial in a court of record and has been denied in violation of the California Constitution and the Constitution for the united states of America. Defendant was required to prove jurisdiction of the State Court, and prove the constitutionality of the statutes codes and failed. The Supreme court stated that once jurisdiction is challenged it must be proven on the record before the court can move one inch forward in the case. Plaintiff submitted a demand for dismissal to the State Court which was ignored (see exhibit B)[.]

Complaint at ECF pp. 2-3 & Ex. A (state court jurisdictional motion).

Plaintiff also alleges that in the State Court action, she was “ordered . . . to take a psychological evaluation on April 21, 2021 or be put in jail for not following a court order.” Id. at ECF p. 3. Although it is not clear whether she complied with the court's order, Plaintiff alleges that she was “arrested with no valid warrant, jailed for 1 days[, ]” id. at ECF p. 8, and that the court “forced [her] to have an esquire attorney Woodbury.” Id. Plaintiff alleges that this was a constitutional violation. Id.

Plaintiff alleges that the defendants “maliciously charged [her] with some sort of crime bringing fraud upon the court” and that the name in the caption of the State Court action is “not even me” because the name is in all capital letters and therefore, is “a fictitious entity.” Id. at ECF pp. 3-4.

Plaintiff seeks to assert claims against all three defendants under 42 U.S.C. § 1983 based on unspecified constitutional violations. Id. at 4. She alleges that these claims should not be barred by a state immunity defense. Id. She also asserts violations of 18 U.S.C. §§ 241, 242, 9121964(c) and 1201(c); 42 U.S.C. § 1986; and 34 U.S.C. § 12601.

Plaintiff also asserts that Defendants are foreign agents because they are members of the California Bar Association, id. at ECF pp. 9-10; that they have impersonated public officials, id. at 10; and that the judge in the State Court action has a Bar card and therefore cannot preside over that action, id. at ECF p. 12. She also contends “The State Bar Act was created and exists as a state created monopoly on the practice of law, which is a direct violation of the Texas Constitution article 1, section 26.” Id. She seeks damages in the amount of $1, 000, 000 as a remedy for “unlawful arrest and one day unlawful incarceration under cruel and unusual circumstances.” Id. at ECF p. 14.

B. Motion to Remove

On May 21, 2021, Plaintiff filed a motion entitled “petition for removal of state court case to Federal case.” Dkt. 8 (“Motion to Remove”). In it, she seeks to remove the State Court action to this Court under 28 U.S.C.§ 1446(b), and 28 U.S.C. §§ 1331 and 1367. Motion to Remove at ECF p. 4. It appears that this request is based on Plaintiff's belief that Defendants have committed constitutional violations against her in the State Court action and Kings County Superior Court does not have jurisdiction to adjudicate constitutional claims. Id. at ECF p. 3.

C. Motion for Emergency Injunction

On July 1, 2021, Plaintiff filed a Motion for Emergency Injunction under Rule 65 of the Federal Rules of Civil Procedure seeking an order “enjoining and prohibiting the Superior Court of California County of Kings Criminal Division, and all of its employees in the State of California from incarcerating [her] in Atascadero State Mental Facility.” Motion for Emergency Injunction at ECF p. 3. She represents that the Judge in the State Court action has ordered that she be incarcerated at Atascadero State Mental Facility because she is “not competent.” Id. at 2.[1] Plaintiff bases her request on alleged violations of statutes by Defendant Fagundes and the allegation that the Superior Court does not have jurisdiction in the State Court action. Id. at ECF p. 4. According to Plaintiff, the Court need not hold a hearing on the motion and may, instead, enter the requested preliminary injunction based on review of the record. Id. at ECF p. 3.


A. Legal Standards Governing Review Under 28 U.S.C. § 1915

Under 28 U.S.C. § 1915(e)(2)(B), where the Court has granted an application to proceed in forma pauperis, it must review the complaint and dismiss it if it is (1) frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Rule 8(a)(2) of the Federal Rules of Civil Procedure provides that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that lacks such statement fails to state a claim and must be dismissed.

In determining whether a plaintiff fails to state a claim, the court assumes that all factual allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to legal conclusions [and] mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Likewise, in reviewing a complaint, the Court need not accept allegations that are “fantastic or delusional, ” “fanciful, ” or “rise to the level of the irrational or wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). The pertinent question is whether the factual allegations, assumed to be true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).

Where the complaint has been filed by a pro se plaintiff, courts must “construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies in the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).

B. Sufficiency of the Complaint

Plaintiff asserts claims against all three defendants under 42 U.S.C. § 1983, 18 U.S.C. §§ 241, 242, 9121964(c) and 1201(c); 42 U.S.C. § 1986; and 34 U.S.C. § 12601. As currently pled, however, she fails to state any cognizable claim.

1. Title XVIII Claims

Plaintiff asserts a number of claims under the United States Criminal Code (Title XVIII). As a general rule, “[f]ederal criminal statutes provide no basis for civil liability.” Hauser v. Smith, No. CV2008138PCTJATJFM, 2021 WL 2262551, at *3 (D. Ariz. June 3, 2021). It is only under rare circumstances that courts will imply a private right of action to enforce criminal laws. See Chrysler Corp. v. Brown, 441 U.S. 281, 284 (1979). There is no private right of action under 18 U.S.C. §§ 241, 242, 912 or 1201(c). Diaz v. City of San Fernando, No. CV 13-6047 DDP (AJW), 2015 WL 13237402, at *5 (C.D. Cal. June 18, 2015), report and recommendation adopted, No. CV 13-6047 DDP (AJW), 2015 WL 13238926 (C.D. Cal. Aug. 28, 2015) (concluding that the plaintiff's claims under 18 U.S.C. §§ 241 and 242...

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