Kleensang v. Gossett III et al

Filing 6

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
BERNITA MARGARET
KLEENSANG,
Plaintiff,
v.
F. A. GOSSETT, et al.,

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8:12CV181

MEMORANDUM
AND ORDER

Defendants.
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 filed an affidavit in which she states that the Complaint she filed
in this matter is a “Criminal Complaint,” and not a “Civil Complaint,” which excuses
her from the civil filing fee requirement. (Filing No. 5.) Indeed, the court has
carefully reviewed Plaintiff’s Complaint, and it appears her sole purpose in filing it
is to persuade the court to assert criminal charges against Defendants on Plaintiff’s
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Gov’t., No. 94-6645, 1995 WL 222178, at *1 (6th Cir. Apr. 13, 1995) (unpublished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 Plaintiff’s request to initiate criminal charges against Defendants
does not set forth a federal claim. In addition, the court warned Plaintiff 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 Plaintiff’s
Complaint, it would be futile for the court to provide Plaintiff an additional
opportunity pay the $350.00 filing fee or submit a motion for leave to proceed in
forma pauperis.
IT IS THEREFORE ORDERED that:
1.
This matter is dismissed without prejudice for failure to pay the court’s
filing fee and for failure to comply with a court order.
2.
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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