McCoy v. Kelso, et al.

Filing 95

ORDER STRIKING Plaintiff's 92 Criminal Complaint, signed by Magistrate Judge Dennis L. Beck on 4/22/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH RAYMOND MCCOY,

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Plaintiff,
vs.
STRONACH, et al.,
Defendants.

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1:12cv00983 AWI DLB PC
ORDER STRIKING PLAINTIFF’S
“CRIMINAL COMPLAINT”
(Document 92)

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Plaintiff Joseph Raymond McCoy (“Plaintiff”) is a state prisoner proceeding pro se and

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in forma pauperis in this civil rights action. Plaintiff filed his complaint on June 19, 2012. This

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action is proceeding on an Eighth Amendment deliberate indifference claim against Defendants

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Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tann.
Defendants’ November 5, 2014, motion for summary judgment based on exhaustion is
pending. On January 5, 2015, the Court granted Defendants’ motion for a protective order and

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stayed all merits-based discovery pending resolution of the exhaustion issue.
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On April 3, 2015, the Court received a “Criminal Complaint” from Plaintiff. The caption
did not include a case number, though Plaintiff references the instant case number in the body of
the document. It appears that Plaintiff wants to file a criminal action against Defendants based
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on the Court’s finding at the screening level that he stated a claim for which relief may be
granted. ECF No. 92, at 3.
However, only state and federal prosecutors have the ability to file a criminal action.
Accordingly, as Plaintiff cannot file a criminal complaint on his own behalf, his filing is

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STRICKEN.
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To the extent that Plaintiff intends to sue Defendants for violation of the California Penal
Code, he cannot do so. Gonzaga University v. Doe, 536 U.S. 273, 283-86 (2002) (basing a claim
on an implied private right of action requires a showing that the statute both contains explicit

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rights-creating terms and manifests an intent to create a private remedy); see also Allen v. Gold

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Country Casino, 464 F.3d 1044, 1048 (9th Cir.2006) (no private right of action for violation of

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criminal statutes).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

April 22, 2015

UNITED STATES MAGISTRATE JUDGE

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L. Beck

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