ZURAFF v. DUNCAN

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JOY ZURAFF,
Plaintiff,
vs. 	Case No.: 3:25cv2179/MCR/ZCB
J. SCOTT DUNCAN,
Defendant.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiff is proceeding pro se and in forma pauperis (IFP) in this
action. 	The Court is required to screen Plaintiff’s complaint (Doc. 1) to
determine if it is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from immune defendants.
28 U.S.C. § 1915(e)(2)(B). 	Upon review of the complaint, it is apparent
that this case should be dismissed.
I. 	Background1
Plaintiff’s complaint is a purported “Federal Criminal Complaint
Against Illegal Gag Court Order” filed under Fed. R. Crim. P. 3. (Doc. 1
1 Since this case is at the pleading stage, the Court assumes the truth of
Plaintiff’s allegations. 	DeVillier v. Texas, 601 U.S. 285, 288 n.1 (2024).
And because Plaintiff is proceeding pro se, the Court “liberally construe[s]
[her] pleadings.” 	Roy v. Ivy, 53 F.4th 1338, 1346 (11th Cir. 2022).
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at 1). Plaintiff alleges that Defendant J. Scott Duncan—a judge in Santa
Rosa County, Florida—violated Plaintiff’s rights under 18 U.S.C. § 242.
(Id.).
Plaintiff alleges that on June 26, 2025, Defendant “issued an Illicit
gag order” against Plaintiff “labeled Order on Motion for protective
order.” (Doc. 1 at 2). The order precludes publishing certain information
found in the state court record. 	(Id.). 	Plaintiff alleges that Defendant,
along with nearly twenty-five various other individuals, acted in concert
to violate Plaintiff’s rights. 	(Id. at 6-7). 	Plaintiff states that Defendant
“should be Indicted and Prosecuted” for violating 18 U.S.C. § 242. (Id. at
1). Plaintiff also asks the Court to issue an arrest warrant for Defendant.
(Id. at 2).
II. 	Legal Standard
To survive dismissal at the screening phase, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). 	The plausibility standard is
met only where the facts alleged enable “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 	Id.
Plausibility means “more than a sheer possibility that a defendant has
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acted unlawfully.” 	Id. 	“Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between
possibility 	and 	plausibility 	of 	entitlement 	to 	relief.” 	Id. 	(internal
quotation marks omitted).
III. Discussion
A. Plaintiff cannot initiate criminal proceedings.
Plaintiff’s 	states 	that 	Defendant’s 	alleged 	conduct 	violated 	18
U.S.C. § 242. But there is no private cause of action under this statutory
provision.2 	See Stoll v. Martin, No. 3:06CV180, 2006 WL 2024387, at *2
(N.D. Fla. July 17, 2006) (“Plaintiff’s complaint fails to state a claim upon
which relief can be granted under the criminal statutes 18 U.S.C. §§ 241
and 242, because a private citizen cannot initiate a federal criminal
prosecution and because these statutes do not provide a private right of
action for damages.”).
2 See also Curry v. Maldanado, 2021 WL 2559451, at *2 (N.D. Ga. June
8, 2021) (stating that “Title 18 generally does not create civil liability or
a private right of action” and that “the language of §§ 241, 242 . . . does
not explicitly create a private right of action, nor is one implied”); Andrew
Corpus v. Depass, 2020 WL 4260980, at *2 (M.D. Fla. July 24, 2020)
(“Because [§§ 241, 242] confer no right to Plaintiff, he cannot base a §
1983 claim on defendants allegedly violating either.”).
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Nor can Plaintiff direct that criminal prosecutions occur due to any
alleged violations of 18 U.S.C. § 242. 	See Khayrallah v. Mahon, No.
4:24CV214-AW-MAF, 2024 WL 5716401, at *1 (N.D. Fla. June 7, 2024)
(stating that a private citizen “does not have a judicially cognizable
interest in the prosecution or nonprosecution of another” and “do[es] not
have the right to compel a State to enforce its laws or prosecute crimes”)
(collecting cases); see also United States ex rel. Stolls v. Martin, No.
3:06CV179 MCRMD, 2006 WL 1883439, at *3 (N.D. Fla. July 7, 2006)
(“This court cannot direct that a federal prosecution occur; authority to
investigate 	and 	initiate 	criminal 	complaints 	rests 	exclusively 	with
federal prosecutors.”).
Accordingly, Plaintiff’s complaint fails to state a claim upon which
relief can be granted. 	Thus, dismissal is warranted under 28 U.S.C. §
1915(e)(2)(B)(ii).
B. Plaintiff’s claims are barred by judicial immunity.
Plaintiff’s complaint is also subject to dismissal because Plaintiff is
attempting to sue an immune Defendant. Judges are entitled to absolute
judicial immunity for acts taken in their judicial capacities unless they
acted “in the clear absence of all jurisdiction.” 	Bolin v. Story, 225 F.3d
1234, 1239 (11th Cir. 2000) (cleaned up). Whether a judge’s actions were
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made while acting in a judicial capacity depends on whether: (1) the act
complained of constituted a normal judicial function; (2) the events
occurred in the judge’s chambers or in open court; (3) the controversy
involved a case pending before the judge; and (4) the confrontation arose
immediately out of a visit to the judge in his judicial capacity. 	Sibley v.
Lando, 437 F.3d 1067, 1070 (11th Cir. 2005).
Here, “[t]he conduct of which [P]laintiff complains”—Defendant
presiding 	over, 	and 	making 	decisions 	in, 	the 	child 	dependency
proceedings in state court—“is a function normally performed by a
judge.”3 	Clark v. Duncan, No. 3:17cv428, 2017 WL 3758980, at *2 (N.D.
Fla. Aug. 4, 2017), adopted, 2017 WL 3749835 (N.D. Fla. Aug. 30, 2017).
And Plaintiff has failed to plausibly allege that Defendant was “plausibly
acting in the clear absence of all jurisdiction” by issuing a “gag order” in
the dependency proceedings. 	Austin v. Mullins, 2024 WL 4502258, at *2
3 See Fla. Stat. § 39.013(2) (“The circuit court has exclusive original
jurisdiction of all proceedings under this chapter, of a child voluntarily
placed 	with 	a 	licensed 	child-caring 	agency, 	a 	licensed 	child-placing
agency, 	or 	the 	department, 	and 	of 	the 	adoption 	of 	children 	whose
parental rights have been terminated under this chapter. 	Jurisdiction
attaches 	when 	the 	initial 	shelter 	petition, 	dependency 	petition, 	or
termination of parental rights petition, or a petition for an injunction to
prevent child abuse issued pursuant to s. 39.504, is filed or when a child
is taken into the custody of the department.”).
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(S.D. Fla. Sept. 10, 2024) (cleaned up), aff’d, 2025 WL 2030051 (11th Cir.
July 21, 2025).
“Alongside judicial immunity from damages, judges also receive
protection from declaratory and injunctive relief.” 	Tarver v. Reynolds,
808 F. App’x 752, 754 (11th Cir. 2020). 	“To receive declaratory or
injunctive relief against a judicial officer under Section 1983, the judicial
officer must have violated a declaratory decree or declaratory relief must
otherwise be unavailable.” 	Id. 	Additionally, “there must also be an
absence of an adequate remedy at law.” 	Id. (cleaned up). 	“A state
appellate process is an adequate remedy at law.” 	Id.
In addition to monetary relief, “declaratory and injunctive relief is
also improper because there is no suggestion that [Defendant] violated a
declaratory decree, and because [Plaintiff] has an adequate remedy at
law: appeal through the state-court system.” 	Id. at 755. Accordingly, to
the 	extent 	Plaintiff’s 	complaint 	seeks 	such 	relief 	from 	Defendant,
Defendant has absolute judicial immunity. It is also apparent that
Plaintiff’s claims against Defendant, “even if amended, would still be
barred by judicial immunity, and, thus, any amendment would [be]
futile.” 	Austin v. McCann, 2023 WL 3335312, at *3 (11th Cir. May 10,
2023). The complaint, therefore, should be dismissed with no opportunity
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to amend. 	See Pepe v. Judge Cynthia Pivachek, No. 3:25-CV-667, 2025
WL 1507016, at *1 (N.D. Fla. May 27, 2025) (dismissing suit against state
judge with prejudice and allowing no opportunity to file an amended
complaint).
IV. 	Conclusion
For the reasons above, it is respectfully RECOMMENDED that
this case be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii)
because the complaint fails to state a plausible claim and seeks relief
from an immune defendant. 	The Clerk of Court should be directed to
enter judgment accordingly and close this case.
At Pensacola, Florida this 10th day of November 2025.
/s/ Zachary C. Bolitho
Zachary C. Bolitho
United States Magistrate Judge
Notice to the Parties
Objections to these proposed findings and recommendations must be
filed within fourteen days of the date of the Report and Recommendation.
Any different deadline that may appear on the electronic docket is for the
Court’s internal use only and does not control. 	An objecting party must
serve a copy of the objections on all other parties. 	A party who fails to
object to the magistrate judge’s findings or recommendations contained
in a report and recommendation waives the right to challenge on appeal
the 	district 	court’s 	order 	based 	on 	unobjected-to 	factual 	and 	legal
conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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