United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
JEFFREY L. CURETON UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and Special Order 3, this case was
automatically referred to the United States Magistrate Judge.
Upon review of the relevant pleadings and applicable law, and
for the reasons that follow, this case should be summarily
FOR WANT OF JURISDICTION
December 11, 2017, Plaintiff, a state prisoner proceeding pro
se, filed a pleading titled Sworn Criminal Complaint with
Sworn Affidavit (“Criminal Complaint”) regarding
Chip Plock, Correctional Officer Inspector General with the
Texas Department of Criminal Justice (TDCJ). Doc. 3 at 1-2.
Plaintiff requests that the Federal Bureau of Investigation,
the U.S. Attorney for the Northern District, and a magistrate
judge “file this Criminal Complaint...
with the Dallas District Attorney Integrity Division, of
Dallas County.” Doc. 3 at 1. He also requests that his
Criminal Complaint be served on TDCJ Executive Director Brad
Livingston and Texas Attorney General Ken Paxton. Doc. 3 at
the Court can glean from the Criminal Complaint, Plaintiff
requests that Plock be arrested and indicted for
“victimization” and for making a materially false
statement or representation in violation of 18 U.S.C. §
1001(a)(2). Doc. 3 at 3. He asserts that Plock made
fraudulent and false statements in September 2014 to a Dallas
County District Attorney Investigator, James Hammond,
regarding Plaintiff's inclination for using violent and
intimidating tactics against other inmates, and that the
state court subsequently relied on Hammond's affidavit in
denying Petitioner's state habeas application. Doc. 3 at
Court should always examine, sua sponte, if necessary, the
threshold question of whether it has subject matter
jurisdiction. System Pipe & Supply, Inc. v. M/V
Viktor Kurnatovsky, 242 F.3d 322, 324 (5th Cir. 2001);
Fed.R.Civ.P. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). Unless otherwise provided
by statute, federal court jurisdiction requires (1) a federal
question arising under the Constitution, a federal law, or a
treaty, see 28 U.S.C. § 1331, or (2) complete diversity
of citizenship between adverse parties and the matter in
controversy exceeds $75, 000, see 28 U.S.C. § 1332.
“Under the well-pleaded complaint rule, ‘a
federal court has original or removal jurisdiction only if a
federal question appears on the face of the plaintiff's
well-pleaded complaint; generally, there is no federal
jurisdiction if the plaintiff properly pleads only a state
law cause of action.'” Gutierrez v.
Flores, 543 F.3d 248, 251-52 (5th Cir. 2008).
Court must always liberally construe pleadings filed by pro
se litigants. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (pro se pleadings are “to be liberally
construed, ” and “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”); Cf.
Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as
to do justice”). Even under this most liberal
construction, Plaintiff has not alleged facts that could be
construed to state federal question jurisdiction for at least
this Court lacks the authority to file a criminal complaint
with the Dallas County District Attorney. And insofar as
Petitioner seeks to compel the District Attorney to file
criminal charges against Plock, federal courts are without
power to issue writs of mandamus against state officers in
the performance of their duties where mandamus is the only
relief sought. Moye v. Clerk, DeKalb Cty. Sup.
Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973).
to the extent Plaintiff seeks to pursue in this Court his
Criminal Complaint alleging criminal law violations, there is
no legal authority for such action. Criminal statutes do not
create a private right of action. For a private right of
action to exist under a criminal statute, there must be
“a statutory basis for inferring that a civil cause of
action of some sort lay in favor of someone.” Cort
v. Ash, 422 U.S. 66, 79 (1975), overruled in part by
Touche Ross & Co. v. Redington, 442 U.S. 560
(1979); see Suter v. Artist M., 503 U.S. 347, 363
(1992) (the party seeking to imply a private right of action
bears the burden to show that Congress intended to create
one). Here, Plaintiff has wholly failed to meet that burden.
In any event, “decisions whether to prosecute or file
criminal charges are generally within the prosecutor's
discretion, and, as a private citizen, [Plaintiff] has no
standing to institute a federal criminal prosecution and no
power to enforce a criminal statute.” Gill v.
Texas, 153 F. App'x 261, 262-63 (5th Cir.
Plaintiff's Criminal Complaint should be dismissed for
lack of federal jurisdiction.
LEAVE TO AMEND
a pro se plaintiff should be granted leave to amend his
complaint prior to dismissal, but leave is not required when
he has already pled his “best case.” Brewster
v. Dretke,587 F.3d 764, 767-68 (5th Cir. 2009). Here,
the facts as alleged by Plaintiff clearly establish a lack of
federal jurisdiction that cannot be ...