3:25-cv-02179•ZURAFF v. DUNCAN
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1 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). Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 1 of 7
2 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 Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 2 of 7
3 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.”). Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 3 of 7
4 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 Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 4 of 7
5 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.”). Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 5 of 7
6 (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 Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 6 of 7
7 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. Case 3:25-cv-02179-MCR-ZCB Document 5 Filed 11/10/25 Page 7 of 7
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