In Re: Joseph W. Higgins

Filing 7

MEMORANDUM AND ORDER that the clerk shall file Higgins' submissions as a separate case directly assigned to the undersigned judge as supervising pro se judge. Higgins' claims are dismissed in their entirety. Judgment will be entered accordingly. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
In Re:
JOSEPH W. HIGGINS,

MEMORANDUM
AND ORDER

Complainant.

This matter is before the court on review to determine if the complainant is
attempting to file a lawsuit and, if so, whether the documents received by the court state
any valid claim. 1 Very liberally construing Higgins’ submissions, he asserts Nebraska’s
United States Attorney has failed to act and, as such, he is entitled to present evidence
before a grand jury, regarding the following allegations:
• Judge Bernstein, a Newark, New Jersey state court judge, has committed and
continues to commit acts of alleged corruption by unlawfully terminating Latasha
Solomon’s parental rights, (Filing No. 66, at CM/ECF p. 1), selling children,
(Filing No. 66, at CM/ECF p. 2), and placing Solomon’s children in unsuitable
and dangerous foster care facilities for personal profit, (Filing No. 63, at CM/ECF
p. 1); 2
• The governor of Missouri and the prosecutors before the Ferguson, Missouri grand
jury failed to obtain an indictment for the death of a black person in Ferguson,
Missouri, (Filing No. 71, at CM/ECF pp. 1-2);

1

Higgins’ documents do not name a defendant and do not specifically request
court action. As such, copies were filed in the court’s pro se correspondence file but no
lawsuit was opened.
2

From Higgins’ documents, it could be inferred that Higgins is the father of
Solomon’s children, but his parental or visitation rights were terminated by Judge
Bernstein based on allegations that Higgins threatened to cut off the children’s fingers.
Higgins denies any threats against the children.
Higgins seeks the death penalty against Judge Bernstein. “I want to put Judge
Bernstein to Death. . . , [because] his acts caused death of kids [and are] part of a
nationwide conspiracy that killed a former congressmen Nancy Schaefer.” (Filing No.
56-1, at CM/ECF p. 5).

• The United States Department of the Army has participated in a racially
discriminatory and unlawful conspiracy by refusing to correct Higgins’ military
record and denying his application for military benefits, (Filing No. 71, at
CM/ECF p. 3, 5);
• The Veteran’s Administration has unlawfully denied Higgins’ claim for benefits
allegedly owed for service-related Post Traumatic Stress Disorder, (Filing No. 561, at CM/ECF p. 7-12; Filing No. 73, at CM/ECF p. 1);
• Higgins’ landlord has harassed and threatened to evict Higgins for failure to timely
pay his rent when, in fact, the rent was paid, (Filing No. 72, at CM/ECF p. 2);
• The Omaha Housing Authority lowered or failed to pay Higgins’ housing benefits
in retaliation for Higgins’ alleged dispute with his landlord, (Filing No. 56-1 at
CM/ECF p. 13); and
• County attorneys in Colorado engaged in race and gender discrimination and
retaliation by prosecuting Higgins and, among other things, obtaining an order
requiring Higgins to pay child support for a daughter despite genetic evidence
proving Higgins is not the child’s father, (Filing No. 56-1, at CM/ECF pp. 2-5).
Liberally construing the pro se submissions, Higgins claims Nebraska’s United
States Attorney and her staff have refused to do their job. Higgins asserts the right to
present his allegations against Judge Bernstein, the Colorado courts and county attorneys,
the Missouri governor and prosecutors before the Ferguson, Missouri grand jury, the
Army, and the VA before a Nebraska federal grand jury. Higgins may also be claiming
the right to appear before a federal grand jury and secure indictments against the
Nebraska United States Attorney’s office for dereliction of duty in failing to pursue
indictments as requested by Higgins.

If Higgins’s submissions are construed as a criminal complaint, his claim must
fail. As Higgins has been previously told, “Higgins may refer his complaint to the United

2

States Attorney's Office,” Higgins v. Neal, 52 F.3d 337 n. 3 (10th Cir. 1995), but “private
citizens cannot prosecute criminal actions.” Id. The prosecution of criminal actions in
the federal courts is a matter solely within the discretion of the Attorney General of the
United States and duly authorized United States Attorneys. United States v. Bryson, 434
F. Supp. 986, 988 (W.D. Okla. 1977) (collecting cases).

“[I]t is today beyond all

reasonable doubt that ‘the prosecution of violations of federal criminal law in federal
court is a function of the federal government, not private parties,’ (Nagy, 2012 WL
1858983, at *2), and federal courts lack the power to direct the filing of criminal
charges.” Mikhail v. Kahn, 991 F. Supp. 2d 596, 636 (E.D. Pa.) aff'd, 572 F. App'x 68
(3d Cir. 2014).

See also, In Smith v. U.S., 2013 WL 2154004 (D. Mass. 2013)

(dismissing “criminal complaints” against the prosecuting attorney and the court because
a private citizen cannot file a criminal complaint in federal court and the court cannot
require the government to initiate criminal proceedings); Robbins v. Smith, 2013 WL
2471589 (M.D. Pa. 2013) (dismissing a private plaintiff’s criminal complaint because the
authority to initiate a criminal complaint rests exclusively with federal prosecutors);
Skudnov v. Cabinet for Health and Family Services, 2013 WL 1403492 (W.D. Ky. 2013)
dismissing a private plaintiff’s criminal claims because a private citizen has no authority
to initiate a federal criminal prosecution of the defendants for their alleged unlawful
acts); Shannon v. Johnson, 2013 WL 1564223 (M.D. Tenn. 2013) (refusing to consider
an inmate’s criminal charges against justice system defendants because the authority to
initiate a criminal complaint rests exclusively with state and federal prosecutors);
Bordock v. Dollar General, Inc., 2013 WL 555877 (M.D. Tenn. 2013) (holding that to the
extent that the plaintiff’s complaint appeared to petition the court to initiate federal
criminal prosecutions, the complaint failed to state claims upon which relief can be
granted).

If Higgins’s submissions are construed as a civil complaint for an order allowing
him, or requiring the United States Attorney, to present his allegations before a Nebraska

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grand jury, the complaint must fail. First, Higgins has not paid the requisite civil filing
fee or filed a motion to pursue this case in forma pauperis. 3

And even if Higgins had paid a filing fee, or the court was willing to consider the
current allegations sufficient to show his inability to pay such a fee (particularly those
sections discussing his disability, and his lack of employment and housing), pursuant to
28 U.S.C. § 1915, the court may review an in forma pauperis complaint prior to service
and “shall dismiss the case at any time if the court determines that . . . the action . . . fails
to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

Higgins’s submissions do not and cannot state a claim upon which relief could be
granted. “Whether to prosecute and what charge to file or bring before a grand jury are
decisions that generally rest in the prosecutor’s discretion.” Parkhurst v. Tabor, 569 F.3d
861, 867 (8th Cir. 2009) (quoting United States v. Batchelder, 442 U.S. 114, 124 (1979)
and holding an assault victim’s parents lacked standing to bring § 1983 suit for alleged
failure to prosecute.). See also, Bauermeister v. Kor Xiong, 440 F. App'x 521 (8th Cir.
2011) (affirming the Nebraska district court and holding a private plaintiff cannot force
criminal prosecution). 4

Higgins has not initiated a lawsuit. His submissions do not request any specific
relief against anyone. He has failed to pay the requisite filing fee or request in forma
pauperis status to file a civil lawsuit. And, even liberally construed, his submissions fail

3

Higgins is not currently an inmate, and is not subject to the Prison Litigation
Reform Act.
4

In addition, as to many if not all of the claims raised, Higgins lacks standing; this
court either lacks jurisdiction or venue; the court should or must abstain; and the judges,
prosecutors, governor, and grand jurors can raise immunity defenses, including absolute,
sovereign, and qualified immunity.
4

to present a cognizable criminal complaint or a civil complaint for which relief could be
granted.

Accordingly,

IT IS ORDERED:

1)

The clerk shall file Higgins’s submissions as a separate case directly
assigned to the undersigned judge as supervising pro se judge.

2)

Higgins’ claims are dismissed in their entirety.

3)

Judgment will be entered accordingly.

March 23, 2015.
BY THE COURT:
s/Richard G. Kopf
Senior United States District Judge
Supervising Pro Se Judge

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