Berry v. Burgess

Filing 4

ORDER DENYING 2 Application to Proceed In Forma Pauperis filed by Duane Berry AND DISMISSING COMPLAINT. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DUANE BERRY.,
Plaintiff,
Case No. 13-11755
Hon. Lawrence P. Zatkoff

v.
DAVID BURGESS,
Defendant.
/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on 22ND , 2013
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff submitted his pro se complaint [dkt 1] and application to proceed in forma pauperis [dkt
2] on April 18, 2013. For the following reasons, Plaintiff’s request to proceed in forma pauperis is
DENIED and Plaintiff’s pro se complaint is DISMISSED.
II. ANALYSIS
A. Plaintiff’s Request to Proceed In Forma Pauperis
Plaintiff has filed an application to proceed without prepayment of fees. Under 28 U.S.C. §
1915(a), “any court of the United States may authorize the commencement, prosecution or defense of any
suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay
such fees or give security therefor.” The reference to assets of “such prisoner” is likely a typographical

error; thus, § 1915(a) applies to all natural persons. See Floyd v. U.S. Postal Serv., 105 F.3d 274 (6th Cir.
1997). If a motion to proceed without prepayment of fees is filed and accompanied by a faciallysufficient affidavit, the Court should allow the complaint to be filed. See Gibson v. R.G. Smith Co., 915
F.2d 260, 261 (6th Cir. 1990) (citing Phillips v. Carey, 638 F.2d 207, 208 (10th Cir. 1981)). Only after
the complaint is filed is it tested to determine whether it is frivolous or fails to state a claim. See id. at 261.
The Court has reviewed Plaintiff’s application and has determined that he is not entitled to proceed in
forma pauperis. The financial information in the application does not indicate that Plaintiff is unable to
pay the filing fee; therefore, the Court DENIES Plaintiff’s application to proceed in forma pauperis [dkt
2].
B. Review of Plaintiff’s Complaint
Upon considering a plaintiff’s request to proceed in forma pauperis, the Court performs a
preliminary screening of the complaint under several provisions of the United States Code. Pursuant to
28 U.S.C. §§ 1915A, 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to sua sponte dismiss the case
before service on a defendant if it determines that the action is frivolous or malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such
relief.
The Court has a duty to construe a pro se plaintiff’s pleadings liberally, see, e.g., Haines v.
Kerner, 404 U.S. 519 (1972), but in doing so, it will not re-write a deficient complaint or otherwise serve
as counsel for that plaintiff. See GJR Invs, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th
Cir. 1998). After reviewing Plaintiff’s complaint, the Court concludes that Plaintiff has failed to state any
claim upon which relief can be granted.
Here, Plaintiff filed his complaint against Defendant David Burgess (“Burgess”). Defendant
Burgess was one of many attorneys that represented Plaintiff in a criminal matter before Judge Gershwin

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Drain of this District. Plaintiff alleges that, “Defendant deprived Plaintiff this Right [i.e., a Speedy and
Public Trial] by violating Federal Statute 18 U.S.C. 4 ‘Misprision of Felony’ by not only representing
Plaintiff by filing the appropriate motions with the Court on Plaintiff’s behalf but also failing to inform the
proper authorities of AUSA Varner’s crimes.” As a result of these allegations, Plaintiff purportedly seeks
monetary relief against Defendant Burgess.
This criminal statute, however, does not authorize any private civil cause of action. Morganroth
& Morganroth v. DeLorean, 123 F.3d 374, 386 (6th Cir. 1997). Moreover, as a private citizen, Plaintiff
“has no authority to initiate a federal criminal prosecution of [D]efendant[] for his alleged unlawful acts.”
Kafele v. Frank & Wooldridge Co., 108 F. App’x 307, 308–09 (6th Cir. 2004) (citing Diamond v.
Charles, 476 U.S. 54, 64–65 (1986)). As such Plaintiff’s claim under Title 18 of the United States Code
must be dismissed.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma pauperis
[dkt 2] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s complaint [dkt 1] is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(e).
IT IS SO ORDERED.
S/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
U.S. District Judge
Date: May 22, 2013

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