Kleensang et al v. Gossett et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: This matter is dismissed without prejudice for failure to pay the court's filing fee and for failure to comply with a court order. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se parties)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID LEE KLEENSANG, and
F. A. GOSSETT, et al.,
This matter is before the court on its own motion. On May 24, 2012, the court
entered a Memorandum and Order requiring Plaintiff to either pay the $350.00 filing
fee or submit a motion for leave to proceed in forma pauperis. (Filing No. 4.) In
response, Plaintiff David Lee Kleensang filed an affidavit in which he states that the
Complaint he filed in this matter is a “Criminal Complaint,” and not a “Civil
Complaint,” which excuses him from the civil filing fee requirement. (Filing No. 5.)
Indeed, the court has carefully reviewed Plaintiffs’ Complaint, and it appears
Plaintiffs’ sole purpose in filing it is to persuade the court to assert criminal charges
against Defendants on Plaintiffs’ behalf. (Filing No. 1.) However, a private plaintiff
cannot force a criminal prosecution because the “authority to initiate a criminal
complaint rests exclusively with state and federal prosecutors.” See Mercer v.
Lexington Fayette Urban Cnty. Gov’t., No. 94-6645, 1995 WL 222178, at *1 (6th Cir.
Apr. 13, 1995) (unpublished order); see also Parkhurst v. Tabor, 569 F.3d 861, 867
(8th Cir. 2009) (quoting United States v. Batchelder, 442 U.S. 114, 124 (1979)
(“Whether to prosecute and what charge to file or bring before a grand jury are
decisions that generally rest in the prosecutor’s discretion.”)).
The court does not have the authority to force a criminal prosecution against
Defendants, and Plaintiffs’ request to initiate criminal charges against Defendants
does not set forth a federal claim. In addition, the court warned Plaintiffs that failure
to comply with the court’s May 24, 2012, Memorandum and Order would result in
dismissal of this matter without further notice. In light of the nature of Plaintiffs’
Complaint, it would be futile for the court to provide Plaintiffs an additional
opportunity pay the $350.00 filing fee or submit a motion for leave to proceed in
IT IS THEREFORE ORDERED that:
This matter is dismissed without prejudice for failure to pay the court’s
filing fee and for failure to comply with a court order.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 3rd day of July, 2012.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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