Opinion
Case: 1:18-mc-00187
12-03-2018
RICHARD BRIAN MARTIN, JR., Plaintiff, v. OFFICER MATT LYNCH, et al., Defendants.
Assigned To : Unassigned
Assign. Date : 12/3/2018
Description: Misc. MEMORANDUM OPINION
This matter is before the Court on its initial review of plaintiff's pro se complaint ("Compl.") and application for leave to proceed in forma pauperis. The Court will grant the in forma pauperis application and dismiss the case pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), mandating dismissal of a complaint which fails to state a claim upon which relief can be granted.
Plaintiff is attempting to file a criminal complaint for "private prosecution," alleging that defendants committed perjury pursuant to Md. Code. Ann. § 9-101 and 18 U.S.C. § 1621. Compl. at caption, 2-4. He seeks to serve as his own prosecutor and believes that he has the right to do so under the First Amendment, however, he is mistaken. Id. at caption, 1. There is no private right to action under the criminal statutes on which he relies. Id. at 2-4; see Fuller v. Unknown Official from Justice Dep't, No. 10-0438, 2010 WL 1005798 at *1 (D.D.C. Mar. 16, 2010) (citing Isbell v. Stewart & Stevenson, Ltd., 9 F. Supp. 2d 731, 734 (S.D. Tex. 1998) (finding that "there is no basis under [18 U.S.C. §§ 1621 and 1623] for any private right of action") and Ebbing v. Butler County, Ohio, No. 1:09-CV-00039, 2010 WL 596470, at *5 (S.D. Ohio Feb. 16, 2010) (affirming magistrate judge's recommendation to deny a motion to amend the complaint where plaintiff sought to add claims that defendant violated 18 U.S.C. § 1621, among others, because there was no private right of action under those criminal statutes)).
For the same reasons, plaintiff cannot bring a civil action on the basis of defendants' alleged violation of state criminal statutes. See Jackson v. Harris, No. RDB-17-373, 2017 WL 655397 at *1, *3 (D. Md. Feb. 16, 2017) (holding that plaintiff failed to state a claim by relying on federal and Maryland criminal statutes, warranting dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1)). The decision of whether or not to prosecute, and for what offense, rests with the prosecution. See, e.g., Borderkircher v. Hayes, 434 U.S. 357, 364 (1978). "[I]n American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997); Sibley v. Obama, 866 F. Supp. 2d 17, 22 (D. D.C. 2012). If plaintiff seeks to pursue criminal charges, he must bring his complaint to the U.S. Attorney's Office. See 5 U.S.C.§ 301; 28 U.S.C. § 547; 23 D.C. Code § 101(c).
Nor has plaintiff provided enough information to establish his citizenship and diversity subject jurisdiction, see Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 906 (D.C. Cir. 2006), or to warrant a discussion of "choice of law." See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Gaither v. Myers, 404 F.2d 216, 222-4 (D.C. Cir. 1968). --------
As such, the complaint is subject to dismissal under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. An Order consistent with this Memorandum Opinion is issued separately.
/s/_________
United States District Judge Date: December 3, 2018