United States District Court, W.D. Virginia, Roanoke Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
Sean Kirby Rosser, a Virginia inmate proceeding pro
se, has filed a civil rights action under 42 U.S.C.
§ 1983, alleging that the defendant, a Virginia circuit
court Judge, violated his constitutional rights and committed
crimes during his probation revocation hearing. (Dkt. 1,
Compl.). Plaintiff has moved for leave to proceed in forma
pauperis. (Dkt. 2). After review of the record, I conclude
that the Complaint is frivolous.
the probation revocation hearing, Plaintiff asserts the
Plaintiff: “I would like to object to the jurisdiction
and challenge the jurisdiction.” Judge Carson:
“Thank you sir. I deny that. Any objections to the
motion for the admission of the exhibit?” Plaintiff:
“No, your Honor.” Plaintiff: “For the
record I am here in propria persona under special appearance
to object to the jurisdiction and challenge the jurisdiction
immediately.” Judge Carson: “And I've denied
that in it[s] entire[t]y. Anything else you'd like to
say.” Plaintiff: “I just told you everything,
I'm objecting to the jurisdiction and challenging the
jurisdiction.” Judge Carson: “I understand,
anything else you'd like to say?” Plaintiff:
“I feel that this is unconstitutional, lacking due
process, you really don't have personal jurisdiction over
me, every contract that I signed was under duress, I
don't wish to participate in the hearing, I don't
give no consent of nothing that's going on, and I want to
challenge the jurisdiction of the court.” Judge Carson:
“Okay. And I know it, and the record knows that you
challenge the jurisdiction of the court. I've denied your
request in that regard.”
(Dkt. 1, Compl. at 3-5).
Complaint alleges three general claims: (1) Judge Carson
violated the Fourteenth Amendment when he arbitrarily denied
Plaintiff's jurisdictional arguments and continued to
sentence Plaintiff on a “null and void plea agreement
and probation”; (2) Judge Carson committed a conspiracy
against rights under 18 U.S.C. § 241; and (3) Judge
Carson deprived him of rights under color of law pursuant to
18 U.S.C. § 242. (Dkt. 1, Compl. at 6). Plaintiff also
filed with his Complaint an “Affidavit: In Support of a
Notice of Treason.” (Dkt. 1-1).
immunity is an immunity from suit, not just from ultimate
assessment of damages. Accordingly, judicial immunity is not
overcome by allegations of bad faith or malice”;
instead, the immunity is only overcome in two circumstances:
(1) “nonjudicial actions, i.e., actions not
taken in the judge's judicial capacity, ” and (2)
“actions, though judicial in nature, taken in the
complete absence of all jurisdiction.” Mireles v.
Waco, 502 U.S. 9, 11-12 (1991) (citations omitted).
exception applies. First, Judge Carson was performing
official duties in his judicial capacity. Second, Judge
Carson properly exercised jurisdiction. Plaintiff previously
committed a crime in Roanoke and was convicted and sentenced
accordingly, which included a term of probation. Plaintiff
complains of actions taken against him for violation of the
terms of his probation, and Judge Carson's revocation of
Plaintiff's probation. Therefore, jurisdiction was
proper, and Judge Carson is entitled to absolute judicial
immunity. See Va. Code § 19.2-239 (“The
circuit courts, except where otherwise provided, shall have
exclusive original jurisdiction for the trial of all
presentments, indictments and informations for offenses
committed within their respective circuits.”); Va. Code
§ 19.2-306 (“In any case in which the [circuit]
court has suspended the execution or imposition of sentence,
the court may revoke the suspension of sentence for any cause
the court deems sufficient that occurred at any time within
the probation period.”).
repeatedly asserts that Judge Carson is not immune because he
did not have jurisdiction, but Plaintiff appears to rehash
frivolous Sovereign Citizen arguments. A
“frivolous” case has been identified as one which
is based on an indisputably meritless legal theory.
Denton v. Hernandez, 504 U.S. 25, 32 (1992). A
“frivolous” claim lacks “an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
18 U.S.C. §§ 241 (conspiracy against rights) and
242 (deprivation of rights under color of law) do not provide
for a private cause of action. Any claims predicated on these
sections fail as a matter of law because “[o]nly the
United States as prosecutor can bring a complaint under 18
U.S.C. §§ 241-241 (the criminal analogue of 42
U.S.C. § 1983).” Cok v. Cosentino, 876
F.2d 1, 2 (1st Cir. 1989) (citations omitted); see
Armstrong v. James Madison University, No.
5:16-cv-00053, 2017 WL 2390234, at *13 (W.D. Va. Feb. 23,
2017) (same) (citing cases).
I will grant plaintiff's motion to proceed in forma
pauperis, and I will dismiss Plaintiff's action as
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i); 28
U.S.C. § 1915A(b)(1); Hamilton v. Murray, 648
Fed.Appx. 344, 345 (4th Cir. 2016) (per curiam) (a complaint
barred by judicial immunity is frivolous).
Clerk is directed to send a copy of this memorandum opinion
and the accompanying order to Plaintiff.