DIMOULAS v. ALMY

Filing 14

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by ANTONIOS N DIMOULAS. Objections to R&R due by 4/21/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

ANTONIOS N. DIMOULAS,
on behalf of minor children
T.D. and A.D.,
Plaintiff,
v.
CHRIS ALMY,
Defendant

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1:17-cv-00048-NT

RECOMMENDED DECISION AFTER SCREENING
COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)
In this action, Plaintiff attempts to assert a claim against Defendant Chris Almy, the
District Attorney for Penobscot County, based on Defendant’s failure to institute criminal
charges against an individual by whom Plaintiff alleges he was assaulted on July 2, 2014.
(Complaint, ECF No. 1.)
Plaintiff filed an application to proceed in forma pauperis (ECF No. 3), which
application the Court granted. (ECF No. 5.) In accordance with the in forma pauperis
statute, a preliminary review of Plaintiff’s complaint is appropriate. 28 U.S.C. § 1915(e)(2).
Following a review of Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2), I
recommend the Court dismiss Plaintiff’s complaint.
Discussion
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure
meaningful access to the federal courts for those persons unable to pay the costs of bringing

an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss
the case at any time if the court determines,” inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary
relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so
as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim,” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).

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Here, Plaintiff alleges that although he submitted to Defendant a report of an
incident in which Plaintiff was the victim of an assault, Defendant “did not do his job.”
(ECF No. 1.) Plaintiff, therefore, asserts a claim based on Defendant’s decision not to
prosecute a criminal charge against the perpetrator of the assault.
The United States Supreme Court has made clear that prosecutors have wide
discretion when deciding whether to initiate a prosecution.
In our criminal justice system, the Government retains “broad discretion” as
to whom to prosecute.” United States v. Goodwin, 457 U.S. 368, 380, n. 11
(1982); accord, Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). “[S]o
long as the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests
entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
This broad discretion rests largely on the recognition that the decision to
prosecute is particularly ill-suited to judicial review.
Wayte v. United States, 470 U.S. 598, 607 (1985). See also United States v. Armstrong,
517 U.S. 456, 464 (1996) (“Judicial deference to the decisions of these executive officers
rests in part on an assessment of the relative competence of prosecutors and courts.”);
United States v. Nixon, 418 U.S. 683, 693 (1974) (“the Executive Branch has exclusive
authority and absolute discretion to decide whether to prosecute a case”); Oyler v. Boles,
368 U.S. 448, 456 (1962) (“[T]he conscious exercise of some selectivity in enforcement is
not in itself a federal constitutional violation.”). The broad discretion exercised by
prosecutors is subject only to a prohibition against “selective enforcement ‘based upon an
unjustifiable standard such as race, religion, or other arbitrary classification.’” United

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States v. Batchelder, 442 U.S. 114, 125 n.9 (1979) (quoting Oyler, 368 U.S. at 456).1
Plaintiff has failed to assert any facts that would suggest Defendant’s decision was not
within his broad discretion.
Furthermore, a prosecutor such as Defendant is entitled to immunity against civil
liability for the decision whether to initiate a prosecution. Imbler v. Pachtman, 424 U.S.
409, 431 (1976) (“[I]n initiating a prosecution and in presenting the State’s case, the
prosecutor is immune from a civil suit for damages under [§] 1983.”); Harrington v. Almy,
977 F.2d 37, 40 (1st Cir. 1992) (“[T]he interest that prosecutorial immunity is designed to
protect—independence in the charging decision—is implicated whether the decision is to
initiate a prosecution or decline to do so.”).
Finally, assuming, arguendo, that prosecutorial immunity against civil liability is
constrained by the Equal Protection Clause, any exception to immunity would not apply to
Plaintiff’s claim. The Supreme Court has held that “a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor threatened
with prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). “[I]n American
jurisprudence at least, a private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Id.

The Supreme Court has noted that “[i]n particular, the decision to prosecute” is subject to equal protection
constraints. Wayte v. United States, 470 U.S. 598, 608 (1985) (reviewing district court’s dismissal of an
indictment on equal protection grounds). Typically, claims challenging a prosecutor’s decisions are brought
by individuals against whom an alleged crime is prosecuted. In this case, Plaintiff, as the victim of an
alleged crime, is asserting the claim.
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Conclusion
Based on the foregoing analysis, after a review in accordance with 28 U.S.C. § 1915,
I recommend the Court dismiss Plaintiff’s complaint.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed finds or recommended decisions entered pursuant
to 28 U.S.C. Section 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen (14)
days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 7th day of April, 2017.

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