McCoy v. Tann et al
Filing
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ORDER to SHOW CAUSE why Case Should not be Dismissed for Plaintiff's Lack of Standing signed by Magistrate Judge Gary S. Austin on 02/17/2017. (Flores, E)
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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,
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vs.
M. TANN, et al.,
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1:16-cv-01864-GSA-PC
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S LACK OF STANDING
TWENTY-DAY DEADLINE TO RESPOND
Defendants.
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I.
BACKGROUND
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Joseph Raymond McCoy (“Plaintiff”) is a state prisoner proceeding pro se with this
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action. Plaintiff filed the complaint commencing this action on November 28, 2016 in the U.S.
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District Court for the Northern District of California. (ECF No. 1.) On December 9, 2016, the
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case was transferred to the Eastern District of California. (ECF No. 4.)
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On January 3, 2017, Plaintiff consented to Magistrate Judge jurisdiction in this action
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pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (ECF No. 8.)
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Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of
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California, the undersigned shall conduct any and all proceedings in the case until such time as
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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
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On January 24, 2017, and February 15, 2017, Plaintiff filed notices to the court,
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claiming that this case was erroneously filed as a civil rights action under 42 U.S.C. § 1983,
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when Plaintiff intended to file a criminal complaint. (ECF No. 14.) Plaintiff requests the court
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to correct this error and allow this case to proceed as a criminal complaint.
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II.
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LEGAL STANDARDS
There is no provision allowing an individual to bring a criminal case.
It is well
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established that private citizens can neither bring a direct criminal action against another person
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nor can they petition the federal courts to compel the criminal prosecution of another person.
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See Martinez v. Ensor, 958 F.Supp. 515, 518 (D.Colo.1997); see also, Maine v. Taylor, 477
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U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (“private parties . . . have no legally
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cognizable interest in the prosecutorial decisions of the Federal Government”); Heckler v.
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Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (a prosecutor’s decision not
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to indict “has long been regarded as the special province of the Executive Branch”); Leeke v.
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Timmerman, 454 U.S. 83, 85–86, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981) (“ ‘a private citizen lacks
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a judicially cognizable interest in the prosecution or non prosecution of another’”) (quoting
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Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)); United
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States v. General Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987). The United States
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Attorneys have the responsibility to prosecute all offenses against the United States within their
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Districts, except as otherwise provided by law. See 28 U.S.C. § 547. Therefore, “[f]ederal
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courts have no jurisdiction of cases prosecuted in the name of the United States unless they are
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prosecuted by the United States Attorney.” United States v. Bryson, 434 F.Supp. 986, 988
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(W.D.Okla. 1977); see also, United States v. Panza, 381 F.Supp. 1133, 1134 (W.D.Pa. 1974)
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(holding private citizens have no right to institute a criminal prosecution in federal court).
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There is also no provision allowing an individual to bring a cause of action under the
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California Penal Code. “A criminal action is prosecuted in the name of the people of the State
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of California, as a party, against the person charged with the offense.” Cal.Penal Code § 684.
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III.
DISCUSSION
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Plaintiff contends that the court mischaracterized his complaint as a civil rights action,
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filed it as a complaint pursuant to 42 U.S.C. § 1983, and has not corrected the error, despite the
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fact that Plaintiff requested corrections. Plaintiff asserts that it is apparent on the face of the
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complaint that he filed a criminal complaint, and there is no dispute that the cause of action is
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criminal. Plaintiff states that “[t]his is not a civil rights lawsuit.” (ECF No. 12.) Plaintiff
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requests the court to direct the Clerk of Court to make the necessary corrections on the court’s
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record to reflect the nature of the complaint as a criminal complaint.
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A review of Plaintiff’s complaint shows that Plaintiff titled it “Criminal Complaint” and
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seeks to bring criminal charges against defendants pursuant to the California Penal Code and
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Title 18 of the United States Code. (Complaint, ECF No. 1 at 3.)
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Also in the complaint, Plaintiff brings claims for cruel and unusual punishment in
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violation of the Eighth Amendment and violations of Due Process and Equal Protection under
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the Fourteenth Amendment. (Id.) These are civil claims typically brought in a civil rights action
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under 42 U.S.C. § 1982. However, Plaintiff asserts that he does not wish to proceed with a
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civil rights action.
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If Plaintiff wishes to proceed only with a criminal complaint, this case must be
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dismissed, because Plaintiff has no standing to bring criminal charges against the defendants.
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Parsons v. Arizona, No. CV 13-0718-PHX-RCB, 2013 WL 4804474, at *4 (D. Ariz. Sept. 9,
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2013). Accordingly, the court shall issue an order for Plaintiff to show cause within twenty
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days why this case should not be dismissed.
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Order to Show Cause
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In light of the foregoing, Plaintiff is required to respond to this order within twenty (20)
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days of the date of service of this order, showing cause why this case should not be dismissed
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based on Plaintiff’s lack of standing to proceed with a criminal complaint. If Plaintiff fails to
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comply with this order, this case shall be dismissed, with prejudice, for failure to state a
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claim.
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IT IS SO ORDERED.
Dated:
February 17, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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