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Murphy v. Plock

United States District Court, N.D. Texas, Dallas Division

January 3, 2018

THOMAS LAMONT MURPHY, #644742, Plaintiff,
v.
CHIP PLOCK, Defendant.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          JEFFREY L. CURETON UNITED STATES MAGISTRATE JUDGE.

         Pursuant 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 DISMISSED WITHOUT

         PREJUDICE FOR WANT OF JURISDICTION

         I. BACKGROUND

         On 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 2.

         As best 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 4.[1]

         II. ANALYSIS

         The 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).

         The 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 two reasons.

         First, 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).

         Second, 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. 2005).[2]

         Consequently, Plaintiff's Criminal Complaint should be dismissed for lack of federal jurisdiction.

         III. LEAVE TO AMEND

         Ordinarily, 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 ...


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