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McCormick v. City of Dallas Police Department

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

April 30, 2018

MELVIN MCCORMICK, Plaintiff,
v.
CITY OF DALLAS POLICE DEPARTMENT ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By Special Order 3-251, this pro se case has been automatically referred for judicial screening. Based on the relevant filings and applicable law, the plaintiff's claims should be DISMISSED with prejudice.

         I. BACKGROUND

         On March 22, 2018, Melvin McCormick (Plaintiff) filed suit against Dallas Police Chief Renee Hall (Chief) and Officers NFM Garrett, R.C. Harding, and NFN McClanahan (collectively Defendants) for alleged harassment, racial discrimination, and violation of his civil rights. (docs. 3 at 1-2;[1] 8 at 1-5.[2]) He alleges violations of 18 U.S.C. §§ 241, 242, 245, and 249, and 42 U.S.C. § 14141, and he seeks monetary damages in the amount of $50, 000, 000 and “issuance of a mandamus order to cease and desist all discriminatory actions against [him].” (docs. 3 at 3-7; 8 at 1-6.) No process has issued.

         II. PRELIMINARY SCREENING

         Because Plaintiff is proceeding in forma pauperis, his complaint is subject to mandatory judicial screening under 28 U.S.C. § 1915(e)(2). It provides for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.

         A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To avoid dismissal for failure to state a claim, plaintiffs must allege facts sufficient to “raise the right to relief above the speculative level.” Twombly, 550 U.S. at 555. Mere “labels and conclusions” nor “a formulaic recitation of the elements of a cause of action” suffice to state a claim upon which relief may be granted. Id. “While a federal court must of course give due credit to the good faith claims of the plaintiff, a court would be remiss in its obligations if it accepted every claim of damages at face value, no matter how trivial the underlying injury.” Diefenthal v. C.A.B., 681 F.2d 1039, 1053 (5th Cir. 1982). Furthermore, under § 1915(e), a court is not bound to accept without question the truth of a pro se plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

         III. CRIMINAL STATUTES

         Plaintiff generally alleges violations of 18 U.S.C. §§ 241, 242, 245, and 249.

         Sections 241, 242, 245 and 249 are all criminal statutes that do not provide a private right of action. See Chaney v. Races and Aces, 590 Fed.Appx. 327, 330 (5th Cir. 2014) (finding that §§ 241 and 242 are criminal statutes that do not create a private right of action), citing Ali v. Shabazz, 8 F.3d 22 (5th Cir. 1993); Williams v. Tri-County Comm. Ctr, 452 F.2d 221, 223 n. 3 (5th Cir. 1971) (noting that §245 is a criminal statute that confers no rights); Rhine v. McFarland, No. 3:15-CV-2185, 2015 WL 5432097, at *1-2 (N.D. Tex. Aug. 19, 2015) (collecting cases finding that as a criminal statute, § 249 does not give rise to a private right of action), rec. adopted by 2015 WL 5398875 (N.D. Tex. Sept. 14, 2015). Private citizens cannot enforce criminal statutes in a civil action. Florance v. Buchmeyer, 500 F.Supp.2d 618, 626 (N.D. Tex. 2007). Nor does a citizen have a constitutional right to have someone criminally prosecuted. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Accordingly, Plaintiff's claims under §§ 241, 242, 245, and 249 should be dismissed for failure to state a claim.

         IV. 42 U.S.C. § 14141

         Plaintiff also sues under 42 U.S.C. § 14141.

         The Fifth Circuit has found that a claim under § 14141, which allows a civil action to eliminate a pattern or practice of unconstitutional conduct by governmental entities and their employees, may only be brought by the Attorney General. Chaney, 590 Fed.Appx. at 330. It does not create a private cause of action by private citizens. See Rodgers v. City of Dallas, No. 3:15-CV-01631-N, 2016 WL 9076232, at *2 n. 1 (N.D. Tex. Oct. 12, 2016); Johnson v. Dodson, No. 2:14-CV-00059-J, 2014 WL 4513380, at *4 (N.D. Tex. Sept. 12, 2014); White v. City of Dallas, No. 3:12-CV-2145-O, 2013 WL 821992, at *5-6 (N.D. Tex. Feb. 8, 2013), rec. adopted 2013 WL 840503 (N.D. Tex. Mar. 6, 2013); Knight v. City of Balch Springs, No. 3:11-CV-1122-B- BH, 2011 WL 3519938, at *2 (N.D. Tex. July 25, 2011), rec. adopted 2011 WL 3510877 (N.D. Tex. Aug. 10, 2011). Plaintiff's § 14141 claims should be dismissed under 28 U.S.C. § 1915(e)(2) for failure to state a claim.

         V. ...


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