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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GERALD L. ROGERS,

Plaintiff,

v.

JEFFREY NORRIS, et al., 

Defendants.

No. C05-1483P

ORDER DISMISSING CLAIMS

AGAINST CERTAIN DEFENDANTS

AND DIRECTING SERVICE OF

SECOND AMENDED COMPLAINT

Plaintiff Gerald Rogers proceeds pro se and in forma pauperis in this action. Plaintiff initially

filed a complaint alleging claims under 42 U.S.C. § 1983. After reviewing Plaintiff’s original

complaint pursuant to 28 U.S.C. § 1915A, the Court dismissed certain claims and granted Plaintiff

leave to file an amended complaint. Plaintiff then filed an amended complaint that raised claims solely

under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. The Court

dismissed that complaint with leave to amend for failure to state a claim upon which relief may be

granted. Plaintiff has now filed a second amended complaint that raises Bivens claims against seven

named federal officials. (Dkt. No. 12). 

Having reviewed Plaintiff’s second amended complaint pursuant to 28 U.S.C. § 1915A, the

Court DISMISSES Plaintiff’s claims against U.S. District Judge Jane Boyle and Kelly Crawford with

prejudice. The Court also DISMISSES Plaintiff’s claims against Mary Jo Williams and Kathrine

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ORDER - 2

Frierson without prejudice. The Court directs service of the second amended complaint on Jeffrey

Norris and Daniel Nathan. The Court cannot direct service on Joseph Quinn at this time because

Plaintiff has not provided a full address for Mr. Quinn. The reasons for the Court’s order are set forth

below.

Background

Plaintiff’s second amended complaint (SAC) is brought against Jeffrey Norris of the Securities

& Exchange Commission (SEC); Daniel Nathan of the Commodity Futures Trading Commission

(CFTC); Joseph Quinn of the Federal Bureau of Investigation (FBI); Assistant United States Attorney

Kathrine Frierson; Kelly Crawford, a court-appointed receiver who is allegedly an “agent for the

United States District Court for the Northern District of Texas”; Mary Jo Williams of the United

States Parole Commission; and the Honorable Jane Boyle, United States District Judge for the

Northern District of Texas. Plaintiff alleges that defendants have “intentionally conspired and continue

to conspire” to deprive Plaintiff of his freedom and interfere with his businesses. SAC ¶ 11.

Plaintiff was arrested at his office in Seattle on February 25, 2005 for parole violations. Id. ¶¶

14, 16. Plaintiff claims that when he was arrested, U.S. Marshals refused to allow him to have access

to his computer to close out a $200 million “open position” on a currency account. Id. ¶¶ 16-17. 

Plaintiff further alleges that he attempted to send a letter from Sea-Tac prison on February 26, 2005 to

a friend with instructions to “close out” the $200 million open position. Id. ¶ 18. Plaintiff claims that

this letter was intercepted by FBI Agent Quinn and that SEC official Norris “advised Quinn to conceal

the contents of the letter” from Plaintiff’s friend, “which caused the position to remain open” and

resulted in a loss of $5 million. Id. ¶¶ 19-20.

On March 2, 2005, the SEC and CFTC filed civil actions against Plaintiff in the United States

District Court for the Northern District of Texas. The SEC/CFTC actions are proceeding before U.S.

District Judge Jane Boyle. Plaintiff alleges that Judge Boyle “conspired” to have these cases assigned

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1

 Plaintiff does not clearly specify whether he seeks to sue these individuals in their official or

individual capacities. Although he alleges that the defendants conspired “in their official capacities” to

deprive plaintiff of his freedom and to interfere with his businesses (SAC ¶ 11), the Court does not

construe this allegation as an indication that Plaintiff seeks to sue Defendants solely in their official

capacities.

ORDER - 3

to her and that Judge Boyle “appointed her conspirator Kelly Crawford to seize as her receiver, the

property of the plaintiff.” Id. ¶ 21.

Discussion

Plaintiff filed this action while an inmate in federal prison and is proceeding in forma pauperis. 

Therefore, his complaint is subject to the screening requirements of 28 U.S.C. § 1915A. This section

requires the Court to review Plaintiff’s complaint and provides:

On review, the court shall identify cognizable claims or dismiss the complaint, or any portion

of the complaint, if the complaint –

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b).

In the SAC, Plaintiff alleges Bivens claims against various federal officials for alleged

deprivations of his constitutional rights under the Fourth and Fifth Amendments, as well as under

Article III of the Constitution. As this Court has previously noted, it is well-established that a Bivens

suit cannot be brought against a federal official acting in his or her official capacity. See Daly-Murphy

v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Therefore, to the extent that Plaintiff seeks to sue any

of the Defendants in their official capacities under Bivens, such claims must be dismissed.1 Because

the Court must construe Plaintiff’s pleadings liberally, the Court will construe the SAC as bringing

claims against the named Defendants in their individual capacities.

A. Claims Against Judge Boyle

Plaintiff’s claims against Judge Boyle are frivolous because they are plainly barred by the

judicial immunity doctrine. This doctrine generally shields judges from suits for monetary damages for

actions taken in a judicial capacity and applies even in cases where a judge allegedly conspires with

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ORDER - 4

prosecutors to predetermine the outcome of a judicial proceeding. See, e.g., Ashelman v. Pope, 793

F.2d 1072, 1078 (9th Cir. 1986). The Supreme Court has held that judicial immunity from suit is

overcome in only two sets of circumstances: (1) “a judge is not immune from liability for nonjudicial

actions, i.e., actions not taken in the judge’s judicial capacity”; and (2) “a judge is not immune for

actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco,

502 U.S. 9, 11-12 (1991).

Plaintiff suggests that Judge Boyle conspired to have the SEC/CFTC lawsuits assigned to her. 

Even assuming the truth of this allegation, actions regarding the assignment of cases are taken in a

judicial capacity and are therefore shielded by the judicial immunity doctrine. See, e.g., Van Deelen v.

Fairchild, 2005 WL 3263885 at * 5 (D. Kan. Dec. 1, 2005). Plaintiff also suggests that Judge Boyle

has acted in absence of jurisdiction in the SEC/CFTC actions, claiming that the United States District

Court for the Northern District of Texas is a “legislative Article I” court, rather than a court

established pursuant to Article III of the Constitution. This contention is entirely without merit. 

Article III, Section I of the Constitution provides that “[t]he judicial Power of the United States, shall

be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time

ordain and establish.” The United States District Court for the Northern District of Texas was duly

established by Congress pursuant to its authority under Article III, Section 1. See 28 U.S.C. §§ 124,

132. Therefore, Plaintiff’s claims against Judge Boyle are DISMISSED with prejudice.

B. Claims Against Kelly Crawford

Similarly, Plaintiff’s claims against Kelly Crawford, an alleged “agent” of the U.S. District

Court for the Northern District of Texas, are frivolous because they are plainly barred under the

judicial immunity doctrine. Plaintiff alleges that Kelly Crawford is serving as a court-appointed

receiver in the SEC/CFTC actions currently pending in the U.S. District Court for the Northern

District of Texas. Under these circumstances, a receiver acts as an agent of the Court and is immune

from suits for monetary damages. See, e.g., Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978)

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ORDER - 5

(noting that judicial immunity “has been extended to other officials of the judiciary,” including

receivers). Therefore, Plaintiff’s claims against Kelly Crawford are DISMISSED with prejudice.

C. Claims Against Mary Jo Williams and Kathrine Frierson

Plaintiff also brings claims against Mary Jo Williams of the United States Parole Commission

and Assistant United States Attorney Kathrine Frierson. Plaintiff alleges that Ms. Frierson (along with

Mr. Norris and Mr. Nathan) “prevailed” on Ms. Williams to: 

(1) “retard” the plaintiff’s February 25, 2006 release date that resulted from a limitation tolled

Parole Hearing on July 12, 2005 and (2) to order a double jeopardy hearing based on the same

evidence for which the plaintiff was tried in the July 12 hearing and from which the charge was

dropped for lack of evidence. 

SAC ¶ 12. 

These allegations, together with Plaintiff’s claims that he has been unlawfully deprived of his

freedom (SAC ¶ VI), appear to indicate that Plaintiff is alleging that his parole was unlawfully denied

or revoked. Under Heck v. Humphrey, 512 U.S. 477 (1994), Plaintiff cannot maintain a Bivens action

for such claims unless he successfully challenges the parole denial or revocation through a separate

proceeding, such as a petition for a writ of habeas corpus. See, e.g., Crow v. Penry, 102 F.3d 1086,

1087 (10th Cir. 1996) (dismissing a Bivens claim because “[t]he civil claim for damages amounts to a

collateral attack on his parole revocation and subsequent incarceration,” which is not permitted by

Heck). As the Ninth Circuit has explained:

We have no difficulty in concluding that a challenge to the procedures used in the denial of

parole necessarily implicates the denial of parole and, therefore, the prisoner’s continuing

confinement. Few things implicate the validity of continued confinement more directly than the

allegedly improper denial of parole. This is true whether that denial is alleged to be improper

based upon procedural defects in the parole hearing or upon allegations that parole was

improperly denied on the merits. Appellant’s civil claim for damages amounts to a collateral

attack on his denial of parole and subsequent incarceration. Heck does not permit this.

Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997).

Because Plaintiff has not alleged that he has successfully challenged his parole denial or

revocation in another proceeding, Plaintiff’s claims against Ms. Williams and Ms. Frierson are

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ORDER - 6

DISMISSED without prejudice. Similarly, claims against other named Defendants based on a theory

that Plaintiff’s parole was unlawfully denied or revoked cannot be maintained at this time.

D. Claims Against Jeffrey Norris, Daniel Nathan, and Joseph Quinn

Plaintiff has named Jeffrey Norris of the SEC, Daniel Nathan of the CFTC, and Joseph Quinn

of the FBI as defendants. Plaintiff’s SAC alleges: (1) When he was arrested on February 25, 2005,

Plaintiff’s business records and currency computer trade station were seized at the behest of Mr.

Norris and Mr. Nathan and Plaintiff was not allowed to “close out” his $200 million open position on

a currency account (SAC ¶¶ 16-17); (2) Mr. Quinn and Mr. Norris allegedly intercepted and concealed

a letter that Plaintiff sent to a friend the next day that contained instructions on how to “close out” the

open position (Id. ¶¶ 18-20); and (3) Mr. Norris and Mr. Nathan improperly utilized the Patriot Act to

obtain Plaintiff’s personal and business banking records in February 2005 (Id. ¶ 12).

Plaintiff allegations that he was not allowed to “close out” his open position when he was

arrested on February 25, 2005 fails to state a claim for violation of his constitutional rights. The Court

is unaware of any authority suggesting that a person who is arrested has a constitutional right to

complete his pending business before he is taken into custody.

However, Plaintiff also alleges that Mr. Norris and Mr. Nathan improperly utilized the Patriot

Act to obtain his personal and business banking records and that Mr. Norris and Mr. Quinn intercepted

and concealed his outgoing mail from Sea-Tac prison. Construed liberally, Plaintiff’s allegations are

sufficient to state cognizable claims under Bivens. Although these claims may be subject to a number

of defenses, including but not limited to a qualified immunity defense, the Court cannot evaluate the

merits of a qualified immunity defense unless that defense is explicitly raised by defendants. See, e.g.,

Harlow v. Fitzgerald, 457 U.S. 800 (1982) (“Qualified or ‘good faith’ immunity is an affirmative

defense that must be pleaded by a defendant official”).

Therefore, the Court will direct service of Plaintiff’s second amended complaint on Mr. Norris

and Mr. Nathan. The Court cannot direct service on Mr. Quinn because Plaintiff has not provided a

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ORDER - 7

full address for Mr. Quinn. Plaintiff is advised that unless he provides a complete address for Mr.

Quinn to the Court, Plaintiff will be responsible for effecting service on Mr. Quinn. 

E. Directions Regarding Service

As noted above, the Court construes Plaintiff’s second amended complaint as raising claims

against federal officials in their individual capacities. Therefore, service will be ordered pursuant to

Fed. R. Civ. P. 4(i)(2)(B), as well as on the Attorney General and the Office of the United States

Attorney for the Western District of Washington pursuant to Fed. R. Civ. P. 4(i)(1).

1. Issuance of Summons

The Clerk shall issue summons in this matter for Jeffrey Norris and Daniel Nathan.

2. Service of Summons and Complaint under Fed. R. Civ. P. 4(i)(1)

The Clerk is directed to send a copy of the summons for Mr. Norris and Mr. Nathan, Plaintiff’s

second amended complaint (Dkt. No. 12), and this Order by registered or certified mail to the

following addresses:

(a) Civil Process Clerk

Office of the United States Attorney for the Western District of Washington

700 Stewart Street

Seattle, WA 98101

(b) Attorney General of the United States

U.S. Department of Justice

950 Pennsylvania Avenue N.W.

Washington, D.C. 20530

3. Request for Waiver of Service

To avoid the expense of personal service, the Court will request Mr. Norris and Mr. Nathan to

waive service of the summons pursuant to Fed. R. Civ. P. 4(d). Therefore, the Clerk is directed to

send the following materials by first-class mail to Jeffrey Norris and Daniel Nathan: A copy of

Plaintiff’s second amended complaint and of this Order, two copies of a Notice of Lawsuit and

Request for Waiver of Service of Summons, a Waiver of Service of Summons, and a return envelope,

postage prepaid, addressed to the Clerk’s Office. These materials shall be sent to Mr. Nathan and Mr.

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ORDER - 8

Norris at the following addresses provided by Plaintiff: (1) Jeffrey Norris, Securities and Exchange

Commission, 801 Cherry Street #1900, Fort Worth, TX 76101; (2) Daniel Nathan, Commodity

Futures Trading Commission, 1155 21st Street N.W., Washington, D.C. 20581.

4. Response Required

Mr. Nathan and Mr. Norris shall have thirty (30) days within which to return the enclosed

Waiver of Service of Summons. Any defendant who timely returns the signed Waiver shall have sixty

(60) days after the date designated on the Notice of Lawsuit to file and serve an answer to the

Complaint or a motion permitted under Federal Rule of Civil Procedure 12.

Any defendant who fails to timely return the signed Waiver will be personally served with a

summons and Complaint, and may be required to pay the full costs of such service, pursuant to

Federal Rule of Civil Procedure 4(d)(2). 

5. Motions for Summary Judgment 

If one of the parties files a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56, the opposing party should acquaint him/herself with Rule 56. Rule 56 requires a

nonmoving party to submit affidavits or other evidence in opposition to a motion for summary

judgment if the moving party has shown the absence of issues of material fact and an entitlement to

judgment as a matter of law. A nonmoving party may not rest upon the mere allegations or denials

of prior pleadings. Rather, successful opposition to a motion for summary judgment requires the

nonmoving party to set forth, through affidavits or other evidence, specific facts showing a genuine

issue for trial. Failure by the nonmoving party to oppose a summary judgment motion or to present

counter evidence could result in the Court accepting the moving party's evidence as the truth, and

entering final judgment in favor of the moving party without a full trial. Rand v. Rowland, 113 F.3d

1520 (9th Cir. 1997).

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ORDER - 9

Conclusion

Plaintiff’s claims against U.S. District Judge Jane Boyle and Kelly Crawford are

DISMISSED with prejudice as frivolous because these claims are clearly barred by the judicial

immunity doctrine. Plaintiff’s claims against Mary Jo Williams and Kathrine Frierson are

DISMISSED without prejudice because Plaintiff has not alleged that his parole revocation or denial

has been successfully challenged in another proceeding. The Court directs service of Plaintiff’s

second amended complaint on Jeffrey Norris and Daniel Nathan. The Court cannot direct service on

Joseph Quinn because Plaintiff has not provided a complete address for Mr. Quinn.

The Clerk shall send a copy of this order to Plaintiff and direct service on Mr. Norris and Mr.

Nathan in the manner described in Section E above.

DATED: April 4, 2006.

 s/Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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