Myers v. Davenport et al
Filing
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Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER In accordance with this Court's order dated April, 14, 2014, the within action be and it is hereby DISMISSED with prejudice in its entirety. This Court CERTIFIES that any appeal would not be taken in good faith.(PSSA, 4)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LINDA MYERS,
)
)
)
)
)
)
)
Plaintiff,
v.
JOHN DAVENPORT, et al.
Defendants.
C.A. No.
13-13149-PBS
MEMORANDUM AND ORDER
June 18, 2014
SARIS, C.D.J.
Procedural Background
On November 14, 2013, Plaintiff Linda Myers (“Myers”) filed
suit against the lottery game Mega Millions and John Davenport,
who was identified as a federal agent.
See Docket No. 1.
In her
complaint, Myers states that she won over 200 million dollars in
various lotteries and that “Obama and the banks wanted [Myers] to
work with Davenport.
Id. at p. 1.
Myers alleges that she has
been working with defendant Davenport and has a sealed contract
delivery for turning in Jamaican Scammers.
Id.
She complains,
among other things, that she has “been harassed and stalked and
stolen from by [her] Business associates who are getting ½ the
money.”
Id.
On April 14, 2014, this Court issued a Memorandum and Order
(Docket No. 6) that, among other things, advised plaintiff that
her complaint and supplement were subject to dismissal and
ordered her to show cause why this action should not be
dismissed, or she shall file an Amended Complaint.
The
Memorandum and Order explained that plaintiff’s allegations were
sprawling, repetitive and not entirely coherent.
Myers failed
to provide a viable legal basis for this action and the pleadings
materially failed to comply with Rule 8 of the Federal Rules of
Civil Procedure.
On May 19, 2014, Myers filed an Amended Complaint.
Docket No. 9.
See
In addition to naming Mega Millions and Davenport
as defendants, Myers adds as defendants President Barack Obama
and David Anderson of Bank of America.
Id.
Plaintiff
Although plaintiff clearly made an effort to file an Amended
Complaint that complies with the pleading requirements of the
Federal Rules of Civil Procedure, the amended complaint fails to
state a claim upon which relief may be granted.
In addition to
adding two new defendants, the Amended Complaint restates and
embellishes the facts as alleged in her original complaint and
supplement.
Discussion
A pro se complaint is entitled to a liberal construction.
See Haines v. Kerner, 404 U.S. 519, 520-521 (1972).
“As a
general rule, ... we hold pro se pleadings to less demanding
standards than those drafted by lawyers and endeavor, within
reasonable limits, to guard against the loss of pro se claims due
to technical defects.” Dutil v. Murphy, 550 F.3d 154, 158 (1st
2
Cir. 2008).
However, even with a liberal reading, plaintiff’s
amended complaint is subject to dismissal.
A.
Private Citizens Cannot Bring
Criminal Actions Against Others
Even though the Court construes plaintiff’s claims in the
light most favorable to plaintiff, there is no private right of
action for the criminal violations alleged.
As a basis for
federal jurisdiction, plaintiff references 18 U.S.C. § 666 (theft
from an organization receiving federal funds).
However, there is
no authority to permit a private cause of action under this
criminal statute.
This is because a private citizen, such as
Myers, lacks a judicially cognizable interest in the federal
prosecution or non-prosecution of another.
See, e.g., Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973); accord Nieves-Ramos v.
Gonzalez, 737 F. Supp. 727, 728 (D. P.R. 1990)(same).1
B.
Claims Against Federal Officials
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Moreover, section 547 of title 28 states, in relevant part,
that “Except as otherwise provided by law, each United States
attorney, within his district, shall—(1) prosecute for all
offenses against the United States.” 28 U.S.C. § 547(1). Thus,
Myers does not have standing to bring a criminal action in
federal court because no statute authorizes her to do so. Kennan
v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964) (per curiam);
accord Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) ( per
curiam ) (stating that only the United States as prosecutor can
bring a complaint under 18 U.S.C. §§ 241–242); Stone v. Warfield,
184 F.R.D. 553, 555 (D. Md.1999) (stating that individual
citizens have no private right of action to institute federal
criminal prosecutions); 28 U.S.C. § 516 (conduct of litigation in
which the United States is a party is reserved to officers of the
Department of Justice, under the direction of the Attorney
General).
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The President of the United States is entitled to absolute
immunity for any action taken in an official capacity.
See Nixon
v. Fitzgerald, 457 U.S. 731, 749, 102 S.Ct. 2690, 73 L.Ed.2d 349
(1982).
Although the victims of a constitutional violation by a
federal agent may recover damages against the official in federal
court, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a federal official
sued individually is entitled to qualified immunity unless the
allegations in the complaint establish a violation of a
constitutional right that was clearly established at the time of
the alleged misconduct.
(May 27, 2014).
Wood v. Moss, 134 S. Ct. 2056, 2068-2069
Moreover, “individual government officials
‘cannot be held liable’ in a Bivens suit “unless they themselves
acted [unconstitutionally].”
Id. at (citing Ashcroft v. Iqbal,
556 U.S. 662, 683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
Myers has failed to plead any conduct by President Obama or
the alleged federal defendants that violated clearly established
constitutional law or statutory rights, and these defendants are
entitled to qualified immunity for any individual capacity
claims.
Certification That Any Appeal
Would Not Be Taken in Good Faith
Pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P.
24(a)(3)(A), I find, and will hereby certify, that any appeal by
Myers of the matters contained in this Memorandum and Order would
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not be taken in good faith.
Such a certification prohibits in
forma pauperis status on appeal even though Myers has been found
to be indigent.
Under 28 U.S.C. § 1915(a)(3) “[a]n appeal may not be taken
in forma pauperis if the trial court certifies in writing that it
is not taken in good faith.” Id. Similarly, under Fed. R. App. P.
24(a)(3)(A), a party who has been permitted to proceed in forma
pauperis in the district court may proceed on appeal in forma
pauperis without further authorization, unless the district court
certifies that the appeal is not taken in good faith.
Id.
In
view of the legal impediments set forth above, I find that any
appeal by plaintiff would not be taken in good faith.
“The
applicant's good faith is established by the presentation of any
issue that is not plainly frivolous.” Ellis v. United States, 356
U.S. 674, 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958) ( per curiam
); see Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000);
Wooten v. District of Columbia, 129 F.3d 206, 208 (D.C. Cir.
1997).
A complaint is “frivolous” if “it lacks an arguable basis
either in law or in fact.” Neitzke, 490 U.S. 319, 325, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989). Such is the case here. I find that
any appeal would be one that plainly does not deserve additional
judicial attention.
Conclusion
Accordingly, should Myers seek to appeal the dismissal of
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this action, she must pay the appellate filing fees or obtain
permission to appeal in forma pauperis directly from the United
States Court of Appeals of the First Circuit.
Conclusion
Based on the above, it is hereby Ordered that:
1.
In accordance with this Court's order dated April, 14, 2014,
the within action be and it is hereby DISMISSED with
prejudice in its entirety; and
2.
This Court CERTIFIES that any appeal would not be taken in
good faith.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
CHIEF, UNITED STATES DISTRICT JUDGE
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