Russell v. Michigan Department of Corrections et al

Filing 4

ORDER of Summary Dismissal. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH ALLEN RUSSELL,
Plaintiff,
vs.

No. 15-cv-10776
Hon. Gerald E. Rosen

MICHIGAN DEPARTMENT OF
CORRECTIONS, PAROLE BOARD,
et al.,
Defendants.
____________________________/
ORDER OF SUMMARY DISMISSAL
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on May 12, 2015
PRESENT: Honorable Gerald E. Rosen
United States District Chief Judge

This is an action brought by a prisoner in state custody claiming, in a rambling
50+ page document that he has been “illegally/unlawfully imprisoned” by the
Defendants. As Mr. Russell is challenging the legality of his imprisonment, the Court
will treat this as a habeas corpus action. Promptly after the filing of a habeas petition, the
Court must undertake a preliminary review of the petition to determine whether “it
plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases; see
28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see

Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to screen out
petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions
which raise legally frivolous claims, as well as those containing factual allegations that
are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
The same screening is required of prisoner civil rights complaints filed pursuant to
42 U.S.C. § 1983. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110
STAT. 1321 (1996) ( “PLRA”), the court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief from a defendant immune
from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C. §§ 1915(e)(2), 1915A.
A frivolous claim is one that “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1831 (1989). While the court must
read a pro se plaintiff’s complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 595 (1972), and generally must accept the plaintiff’s allegations as true, it is
not required to do so where the allegations are clearly irrational or wholly incredible.
Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733 (1992).
Applying these standards, the Court concludes that Plaintiff’s complaint is
frivolous and fails to state a claim upon which relief may be granted. Therefore, this case
will be dismissed.
Kenneth Allen Russell is incarcerated by the Michigan Department of Corrections
in the Central Michigan Correctional Facility in St. Louis, Michigan. He is serving

sentences for criminal sexual conduct, second degree, and absconding. Petitioner
pleaded guilty in the Circuit Court in Crawford County, Michigan. He was sentenced on
January 9, 2002. He has previously filed complaints challenging the legality of his
incarceration (which were summarily dismissed) and actions claiming he has been denied
proper medical care by the MDOC. However, the instant action is brought as a criminal
complaint and a demand for a grand jury indictment charging the various defendants with
various crimes.
However, Mr. Russell has no standing to commence a criminal action in federal
court. See Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir.1964) (per curiam) (“Not only
are we unaware of any authority for permitting a private individual to initiate a criminal
prosecution in his own name in a United States District Court, but also to sanction such a
procedure would be to provide a means to circumvent the legal safeguards provided for
persons accused of crime.”); Bass Angler Sportsman Soc’y v. U.S. Steel Corp., 324
F.Supp. 412, 415 (S.D.Ala.) (outlining “the firmly established principle that criminal
statutes can only be enforced by the proper authorities of the United States Government
and a private party has no right to enforce these sanctions”), aff’d, 447 F.2d 1304 (5th
Cir.1971). Courts universally endorse the principle that private citizens cannot prosecute
criminal actions. See, e.g., Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989) (per curiam)
(“Only the United States as prosecutor can bring a complaint under 18 U.S.C. §§
241–242 (the criminal analogue of 42 U.S.C.1983) ....”) (citations omitted); Connecticut
Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86–87 (2d Cir.1972) (“It is a

truism, and has been for many decades, that in our federal system crimes are always
prosecuted by the Federal Government, not as has sometimes been done in AngloAmerican jurisdictions by private complaints.”); Winslow v. Romer, 759 F.Supp. 670,
673 (D.Colo.1991) (“Private citizens generally have no standing to institute federal
criminal proceedings.”). In fact, no action may be taken to issue a warrant or summons
on a complaint except on the request of an attorney for the government. See
Fed.R.Crim.P. 4(a).
The foregoing authorities make clear that a prisoner civil rights or habeas action is
not a proper vehicle for attempting to bring criminal charges. See Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973) (private citizen lacks standing to initiate criminal
proceedings); see also Associated Builders & Contractors v. Perry, 16 F.3d 688, 692-93
(6th Cir.1994) (private party lacks standing to compel the state to pursue criminal or civil
actions).
For these reasons, the Court determines that Plaintiff’s action fails to state a claim
and is frivolous, and therefore,
IT IS HEREBY ORDERED that this case shall be, and hereby is, DISMISSED, in
its entirety, with prejudice.
Under section 2253(c)(2), the Court must also determine whether a Certificate of
Appealability should be granted. A Certificate should issue if Petitioner has demonstrated
a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
Court’s dismissal of Petitioner’s action under Rule 4 is a determination that the habeas

action, on its face, lacks sufficient merit to warrant service. It follows that an issue merits
review is not warranted. See Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991) (it is
somewhat anomalous for the court to summarily dismiss under Rule 4 and grant a
certificate); Hendricks v. Vasquez, 908 F.2d 490, 492 (9th Cir.1990) (requiring reversal
where court summarily dismissed under Rule 4 but granted certificate).
Therefore, Court declines to issue Petitioner a Certificate of Appealability. The
Court will also deny Mr. Russell leave to proceed on appeal in forma pauperis as any
appeal of this action would not be in good faith. See McGore v. Wrigglesworth, 114 F.3d
601, 611 (6th Cir.1997).
SO ORDERED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 12, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 12, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]