McCoy v. Tann et al

Filing 15

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSEPH RAYMOND McCOY, 10 Plaintiff, 11 12 vs. M. TANN, et al., 13 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. 14 15 I. BACKGROUND 16 Joseph Raymond McCoy (“Plaintiff”) is a state prisoner proceeding pro se with this 17 action. Plaintiff filed the complaint commencing this action on November 28, 2016 in the U.S. 18 District Court for the Northern District of California. (ECF No. 1.) On December 9, 2016, the 19 case was transferred to the Eastern District of California. (ECF No. 4.) 20 On January 3, 2017, Plaintiff consented to Magistrate Judge jurisdiction in this action 21 pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance. (ECF No. 8.) 22 Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of 23 California, the undersigned shall conduct any and all proceedings in the case until such time as 24 reassignment to a District Judge is required. Local Rule Appendix A(k)(3). 25 On January 24, 2017, and February 15, 2017, Plaintiff filed notices to the court, 26 claiming that this case was erroneously filed as a civil rights action under 42 U.S.C. § 1983, 27 when Plaintiff intended to file a criminal complaint. (ECF No. 14.) Plaintiff requests the court 28 to correct this error and allow this case to proceed as a criminal complaint. 1 1 II. 2 LEGAL STANDARDS There is no provision allowing an individual to bring a criminal case. It is well 3 established that private citizens can neither bring a direct criminal action against another person 4 nor can they petition the federal courts to compel the criminal prosecution of another person. 5 See Martinez v. Ensor, 958 F.Supp. 515, 518 (D.Colo.1997); see also, Maine v. Taylor, 477 6 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (“private parties . . . have no legally 7 cognizable interest in the prosecutorial decisions of the Federal Government”); Heckler v. 8 Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (a prosecutor’s decision not 9 to indict “has long been regarded as the special province of the Executive Branch”); Leeke v. 10 Timmerman, 454 U.S. 83, 85–86, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981) (“ ‘a private citizen lacks 11 a judicially cognizable interest in the prosecution or non prosecution of another’”) (quoting 12 Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)); United 13 States v. General Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987). The United States 14 Attorneys have the responsibility to prosecute all offenses against the United States within their 15 Districts, except as otherwise provided by law. See 28 U.S.C. § 547. Therefore, “[f]ederal 16 courts have no jurisdiction of cases prosecuted in the name of the United States unless they are 17 prosecuted by the United States Attorney.” United States v. Bryson, 434 F.Supp. 986, 988 18 (W.D.Okla. 1977); see also, United States v. Panza, 381 F.Supp. 1133, 1134 (W.D.Pa. 1974) 19 (holding private citizens have no right to institute a criminal prosecution in federal court). 20 There is also no provision allowing an individual to bring a cause of action under the 21 California Penal Code. “A criminal action is prosecuted in the name of the people of the State 22 of California, as a party, against the person charged with the offense.” Cal.Penal Code § 684. 23 III. DISCUSSION 24 Plaintiff contends that the court mischaracterized his complaint as a civil rights action, 25 filed it as a complaint pursuant to 42 U.S.C. § 1983, and has not corrected the error, despite the 26 fact that Plaintiff requested corrections. Plaintiff asserts that it is apparent on the face of the 27 complaint that he filed a criminal complaint, and there is no dispute that the cause of action is 28 criminal. Plaintiff states that “[t]his is not a civil rights lawsuit.” (ECF No. 12.) Plaintiff 2 1 requests the court to direct the Clerk of Court to make the necessary corrections on the court’s 2 record to reflect the nature of the complaint as a criminal complaint. 3 A review of Plaintiff’s complaint shows that Plaintiff titled it “Criminal Complaint” and 4 seeks to bring criminal charges against defendants pursuant to the California Penal Code and 5 Title 18 of the United States Code. (Complaint, ECF No. 1 at 3.) 6 Also in the complaint, Plaintiff brings claims for cruel and unusual punishment in 7 violation of the Eighth Amendment and violations of Due Process and Equal Protection under 8 the Fourteenth Amendment. (Id.) These are civil claims typically brought in a civil rights action 9 under 42 U.S.C. § 1982. However, Plaintiff asserts that he does not wish to proceed with a 10 civil rights action. 11 If Plaintiff wishes to proceed only with a criminal complaint, this case must be 12 dismissed, because Plaintiff has no standing to bring criminal charges against the defendants. 13 Parsons v. Arizona, No. CV 13-0718-PHX-RCB, 2013 WL 4804474, at *4 (D. Ariz. Sept. 9, 14 2013). Accordingly, the court shall issue an order for Plaintiff to show cause within twenty 15 days why this case should not be dismissed. 16 Order to Show Cause 17 In light of the foregoing, Plaintiff is required to respond to this order within twenty (20) 18 days of the date of service of this order, showing cause why this case should not be dismissed 19 based on Plaintiff’s lack of standing to proceed with a criminal complaint. If Plaintiff fails to 20 comply with this order, this case shall be dismissed, with prejudice, for failure to state a 21 claim. 22 23 24 25 IT IS SO ORDERED. Dated: February 17, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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