Robinson v. Parker et al
Filing
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MEMORANDUM OPINION & ORDER by Senior Judge Thomas B. Russell on 4/23/2012: within 30 days of entry of this order, pla shall file with the court a completed prisoner 1983 form; see order for specificscc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
ANTHONY L. ROBINSON
PLAINTIFF
v.
CIVIL ACTION NO. 5:12CV-P45-R
PHILIP PARKER et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff, Anthony L. Robinson, filed a pro se, in forma pauperis complaint (DN 1). For
the reasons set forth below, the Court will allow Plaintiff the opportunity to file a completed
prisoner 42 U.S.C. § 1983 complaint form before conducting initial review pursuant to 28 U.S.C.
§ 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
I.
Plaintiff, who is incarcerated at the Kentucky State Penitentiary, initiated this action by
filing on his own paper what he titled “Petition for Federal Charges.” He stated that he wished
to file and press federal charges against Warden Philip Parker, Deputy Warden Alan Brown, and
Chaplain Sheila Burnham. He alleged that these Defendants violated his Fifth, First, and
Fourteenth Amendment rights. He alleged that he and his “Moorish American Brothers with the
Moorish Science Temple of American Islamism Faith” have been targeted for the use of their
tribal names, violating the Nationality Act and the Religious Freedom Restoration Act of 1993.
He also alleges that racism and retaliation are taking place against them and that their Eighth
Amendment rights are being violated. He asks this Court to issue an order to the Kentucky
Department of Corrections (KDOC) “requesting or demanding” that he be transferred to another
penitentiary because he fears for his life for filing these charges. He also asks this Court to issue
an Order recognizing certain prisoner names as containing “El” and “Bey” as part of their name
because it is required that “Moorish Americans use El and Bey as a birthright as well as religious
right.”
Plaintiff also submitted a certification of funds deposited into his prison institutional
account for the last six months, which the Court interpreted to be a request to proceed in forma
pauperis, and which the Court granted. Plaintiff then submitted a response stating that he
wished to press federal charges not file a civil action for which the filing fee is $350. He states
that what he filed was “Not a lawsuit and shall not be treated as a lawsuit.” He states that “$350
dollars is too much just to file a Federal Criminal Complaint. Which this being said, the
petitioner wishes to dismiss this complaint due to the filing fee being way too much[] [a]s this
would not have cost the same as the citizens in society.” He states that he wishes to dismiss this
complaint without prejudice but that he does request that he and “all members of branch temple
#43 of the Moorish Science Temple of America a moslem religion be recognized by this said
government and entitle them to use ‘El’ and ‘Bey’ at the end of their names.” He states that the
Moorish Americans would be satisfied if the Court would issue an Order to the KDOC that
recognizes that he is entitled to use the name “El” at the end of his name as a right under the
First Amendment.
II.
Plaintiff cannot bring federal charges
Plaintiff asserts that all he wishes to do is press charges against Defendants. “It is well
settled that the question of whether and when prosecution is to be instituted is within the
discretion of the Attorney General.” Powell v. Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965).
2
The Court does not have the power to direct that criminal charges be filed as Plaintiff seeks, nor
can Plaintiff “press” charges against these prison employees in this Court. Peek v. Mitchell, 419
F.2d 575, 577-78 (6th Cir. 1970); Fleetwood v. Thompson, 358 F. Supp. 310, 311 (N.D. Ill.
1972).
Plaintiff’s initiating document is a civil-rights complaint
In addition to seeking to press charges, Plaintiff requests injunctive relief in the forms of
a transfer and being allowed to add “El” to his name. The relief that Plaintiff seeks is the type of
relief that is encompassed by the Constitution and federal law. Dyer v. Hardwick, No. 10-cv10130, 2011 WL 4036681 (E.D. Mich. Aug. 1, 2011); Chambers v. United States, 106 F.3d 472,
475 (2d Cir. 1997) (opining pro se petitions should be characterized according to the relief
sought, and not to the label given to them by pro se prisoners unlearned in the law); Szaflarski v.
Lurie Co., No. 90C606, 1991 WL 169356, at *3 (N.D. Ill. Aug. 27, 1991) (“Pro se complaints
are to be construed liberally and, if the facts support a particular type of claim, the complaint is
to be considered to contain that claim even if the plaintiff did not cite the proper statute or
accurately label a claim.”). In short, the allegations that Plaintiff makes are the type of
allegations that are brought in § 1983 complaints.
Plaintiff is not entitled to a refund
Finally, dismissal of this action would not relieve Plaintiff of his responsibility to pay the
full amount of the requisite $350.00 filing fee in this action. In re Alea, 286 F.3d 378, 381 (6th
Cir. 2002); McGore v. Wrigglesworth, 114 F.3d at 607. Rather, the obligation to pay the filing
fee attaches when a prisoner “brings a civil action.” In re Alea, 286 F.3d at 381. As has already
been discussed, Plaintiff cannot press federal charges, and his complaint alleges claims and
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requests relief that fall under § 1983. The dismissal of the complaint now would not negate the
obligation to pay the fee. McGore v. Wrigglesworth, 114 F.3d at 607 (“Section 1915(b)(1)
compels the payment of the respective fees at the moment the complaint . . . is filed. . . . Any
subsequent dismissal of the case does not negate this financial responsibility.” (citations
omitted)); see also Hatchet v. Nettles, 201 F.3d 651, 654 (5th Cir. 2000).1
Screening
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, if the court
determines that it is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. §§ 1915A(b)(1) and (2). However, before the Court will screen this action, the Court will
send Plaintiff a form for filing a complaint pursuant to 42 U.S.C. § 1983 in case Plaintiff wishes
to more fully flesh out his claims knowing that they will be treated as a civil-rights action.
III. ORDER
IT IS ORDERED that within 30 days of entry of this Order, Plaintiff shall file with the
Court a completed prisoner § 1983 form whereupon this matter will undergo initial review.
Should Plaintiff fail to comply with this Order, the Court will conduct its initial review without
the benefit of the completed form complaint. The Clerk of Court is DIRECTED to send to
Plaintiff a prisoner § 1983 form and a copy of the Pro Se Prisoner Handbook.
Finally, the Court would point out to Plaintiff that as a non-lawyer he may not represent
1
The Court notes that the filing fee for filing a civil action – $350 – is the same for
incarcerated and non-incarcerated persons.
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any other plaintiffs to this action. 28 U.S.C. § 1654 (“In all courts of the United States the
parties may plead and conduct their own cases personally or by counsel as, by the rules of such
courts, respectively, are permitted to manage.”); Eagle Assocs. v. Bank of Montreal, 926 F.2d
1305, 1308 (2d Cir. 1991) (explaining that § 1654 “‘does not allow for unlicensed laymen to
represent anyone else other than themselves”’) (citation omitted)).
Date:
April 23, 2012
cc:
Plaintiff, pro se
4413.009
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