Phinney v. Lt. A. Espinoza

Filing 7

MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION WILLIAM E. PHINNEY, TDCJ #02102386, Plaintiff, v. LT. A. ESPINOZA, Defendant. January 10, 2017 David J. Bradley, Clerk § § § § § CIVIL ACTION NO. H-16-3535 § § § § § MEMORANDUM OPINION AND ORDER The plaintiff, William E. Phinney (TDCJ #02102386), has filed a Prisoner's ("Complaint") Civil Rights (Docket Entry Complaint No. under 1). 42 U.S.C. Because § plaintiff 1983 is incarcerated, the court is required to scrutinize the claims and dismiss the Complaint, in whole or in part, if it determines that the Complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). After considering all of the pleadings, the court concludes that this case must be dismissed for the reasons explained below. I. Background When Phinney filed the Complaint in this case he was in the custody of the Harris County Jail, having been arrested on theft charges 1 by officers with the Pasadena Police Department. 1 Complaint, Docket Entry No. 1, p. 3. See also Attachment to Prisoner's Civil Rights Complaint, Docket Entry No. 1-1, pp. 1-4, (continued ... ) Subsequently, Phinney was convicted of those charges and is currently incarcerated by the Texas Department of Criminal Justice. 2 Phinney has filed this civil action against Lieutenant A. Espinoza Division. 3 of the Pasadena Phinney Police contends Department that he and Internal his Affairs daughter mistreated during the course of his arrest for theft. 4 were Phinney contacted Espinoza to report "illegal conduct" by the arresting officers, but Espinoza failed to prepare a police report regarding the incident. 5 Phinney contends, violated his civil rights. 6 therefore, that Espinoza has Phinney seeks a criminal investigation of the officers who arrested him. 7 II. Phinney filed a arrested him. 8 Discussion separate lawsuit against the officers who That case was dismissed on October 24, 2016, after 1 ( • • • continued) in Phinney v. Pasadena Police Dep't, ( S . D . Tex . ) . Civil Action No. 2 Notice, Docket Entry No. 6, p. 1. 3 Complaint, Docket Entry No. 1, p. 3. 4 Id. at 4. 5 Id. 6 Id. 7 H-16-3105 Id. 8 Prisoner' s Civil Rights Complaint, Docket Entry No. 1 in Phinney v. Pasadena Police Dep't, Civil Action No. H-16-3105 (S.D. Tex.). -2- the district court determined that Phinney failed to articulate a viable claim for relief. 9 To the extent that Phinney now faults Espinoza for failing to initiate criminal charges against those officers, there is no constitutional right to have someone criminally prosecuted. See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Nor is there a constitutional right to have someone investigated. Moreover, the decision to charge an individual with criminal violations is not vested within the courts, but is solely within the discretion of the district attorney. 1146, 1149 cognizable See Linda R.S. v. Richard D., (1973) ("[A] interest in private the citizen prosecution lacks or a 93 S. Ct. judicially nonprosecution of another."); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (observing that there is "no such constitutional right" to have another criminally prosecuted) . Private citizens are thus not entitled the to wrongdoers. an order requiring Del Marcelle v. 901-02 (7th Cir. 2012) arrest or Brown County Corp., prosecution of 680 F.3d 887, (Easterbrook, C.J., concurring) (citations omitted) . Because the Complaint lacks an arguable basis in law, case will be dismissed pursuant to 28 U.S.C. § this 1915A(b) as legally frivolous. 9 0rder of Dismissal, Docket Entry No. 4 in Phinney v. Pasadena Police Dep't, Civil Action No. H-16-3105 (S.D. Tex.). -3- III. Conclusion and Order Based on the foregoing, the court ORDERS that the Complaint filed by William E. Phinney (Docket Entry No. 1) is DISMISSED with prejudice as frivolous. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. copy by regular mail, Texas Department of The Clerk will also provide a facsimile transmission, Criminal Justice or e-mail to the Office of the General Counsel, P.O. Box 13084, Austin, Texas 78711, Fax Number (512) 9362159. SIGNED at Houston, Texas, on this 9th day of January, 2017. SIM LAKE UNITED STATES DISTRICT JUDGE -4-

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