              Case: 19-10151     Date Filed: 10/11/2019    Page: 1 of 5


                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-10151
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 0:18-cv-62832-BB



KENNETH A. FRANK,

                                                            Plaintiff-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                 (October 11, 2019)

Before TJOFLAT, JORDAN and FAY, Circuit Judges.

PER CURIAM:

      Kenneth A. Frank, a Florida prisoner proceeding pro se, appeals the

dismissal of his 42 U.S.C. § 1983 action for failure to state a claim that the
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government violated his rights under the Crime Victims’ Rights Act (“CVRA”), 18

U.S.C. § 3771. We affirm.

                                I. BACKGROUND

      Frank filed a complaint against the government alleging that it had deprived

him of his conferral rights under the CVRA. In his complaint, Frank stated that he

was the victim of “kidnapping, robbery and other federal crimes and RICO Act

violations.” He alleged that several state officials and Wells Fargo Bank

committed these crimes. Frank stated that he made multiple attempts to report the

alleged crimes to various government agencies but received no response. He

believed that these requests were ignored because he is currently in prison in

connection with an unrelated matter. Frank argued that the government’s inaction

with respect to his requests amounted to a violation of his right under the CVRA to

confer with a government attorney regarding his case. Accordingly, Frank

requested a court order requiring the United States Attorney’s Office to confer with

him about the alleged crimes.

      Frank’s case was assigned to a magistrate judge, who issued a report and

recommendation (“R&R”). The magistrate judge recommended that Frank’s

complaint be dismissed for two reasons. First, the magistrate judge, referring to

Frank’s pending prosecution for which he is currently in prison, recommended that




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the court abstain from ruling on Frank’s claim pursuant to the Younger 1 doctrine.

Second, the magistrate judge recommended that Frank’s complaint be dismissed as

frivolous and failing to state a claim under 28 U.S.C. § 1915A(b).

         Frank filed objections to the R&R, clarifying that his complaint pertained

not to his pending criminal prosecution but to an unrelated state foreclosure

proceeding and objecting to the magistrate judge’s application of Younger.

Additionally, Frank provided more details regarding the foreclosure case and the

alleged crimes identified in his complaint. He also stated that the foreclosure

proceedings and the underlying mortgage were illegal and that he was kidnapped

when he was removed from prison by state officials and taken to his foreclosure

hearing after refusing to attend a previously scheduled hearing. Frank argued that

the conduct outlined in these new allegations amounted to violations of several

federal criminal statutes. With respect to the magistrate judge’s second reason for

recommending dismissal, Frank argued that the magistrate judge erred by failing to

liberally construe his complaint as required in pro se cases.

         The district court issued an order adopting the R&R. The district court

agreed with Frank that Younger was inapplicable to the case because Frank’s

complaint did not pertain to his pending prosecution. Nevertheless, the district

court agreed with the magistrate judge’s ultimate recommendation of dismissal,


1
    Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971).
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stating that Frank’s complaint “does not establish” that he is a “crime victim” for

the purposes of the CVRA.

      On appeal, Frank argues that the district court erred when it adopted the

magistrate judge’s finding that Frank failed to show that he is a “crime victim” for

the purposes of the CVRA. He contends that the allegations in his complaint are

sufficient to state a claim because he is not required at this stage in the litigation to

establish that a federal crime was committed or that he was harmed by such crime.

                                    II. DISCUSSION

      We review de novo the district court’s sua sponte dismissal of Frank’s

complaint for failure to state a claim under 28 U.S.C. § 1915A(b). Waldman v.

Ala. Prison Comm’r, 871 F.3d 1283, 1289 (11th Cir. 2017). For the purposes of

this review, “[t]he complaint’s factual allegations must be accepted as true.” Id.

At the same time, we recognize that “naked assertions devoid of further factual

enhancement” or “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation marks and alteration

omitted). In addition, as is relevant to this case, we note that a district court has

discretion to refuse to consider matters raised for the first time in an objection to a

magistrate judge’s report and recommendation. Williams v. McNeil, 557 F.3d

1287, 1290-91 (11th Cir. 2009).


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       The CVRA provides “crime victim[s]” with certain rights, including “[t]he

reasonable right to confer with the attorney for the Government in the case.” 18

U.S.C. § 3771(a). A crime victim may assert these rights even if there is no

ongoing prosecution in connection with the applicable crime. Id. § 3771(d)(3).

The CVRA defines the term “crime victim” as “a person directly and proximately

harmed as a result of the commission of a Federal offense.” Id. § 3771(e)(2).

       In his complaint, Frank stated that he was the victim of several federal

offenses; however, he did not explain the alleged crimes outside of providing a

date on which the alleged crimes occurred and identifying the alleged perpetrators.

Such conclusory statements are insufficient to establish a cause of action, see

Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; therefore, Frank failed to properly allege

that he is a “crime victim” under the CVRA. Although Frank provided further

details of the alleged crimes in his objections to the R&R, the district court was

within its discretion to disregard these newly raised allegations. 2 See Williams,

557 F.3d at 1290-91.

       AFFIRMED.




       2
          We note that even if the district court had considered the new allegations, dismissal still
would have been appropriate. While Frank stated in his objections that several federal criminal
statutes had been violated, he did not explain how the alleged perpetrators’ actions violated these
statutes. Accordingly, these newly raised allegations also were insufficient to establish a cause
of action. See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
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