Opinion
2:01-CV-0107
April 12, 2001
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff JERRY D. BRUMBAUGH, acting pro se, has filed suit complaining against the above-referenced defendants and was given permission to proceed in accordance with Title 28, United States Code, section 1915(b).
JUDICIAL REVIEW
Title 28, United States Code, section 1915(e)(2) provides the court shall dismiss a pauper case at any time if the court determines the action or appeal is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff claims the defendants have violated sections 241 and 242 of Title 18, United States Code by issuing, or by ascending to the Bench of a Court which has issued, erroneous opinions, beginning with theSlaughter-House Cases in 1872, which, plaintiff argues, contravene the U.S. Constitution and result in deprivations of plaintiff's constitutionally-protected rights.
Slaughter-House Cases. 83 U.S. 35, 21 L.Ed. 394, 16 Wall. 36 (1872).
The Court notes that the prosecution of criminal actions in the federal courts is a matter solely within the discretion of the Attorney General of the United States, and duly authorized United States Attorneys. If certain facts were present, plaintiff might be referred to the United States Attorney; however, in this case, plaintiff's allegations clearly demonstrate a lack of specific intent by the defendants to violate the constitutional right(s) of plaintiff or anyone else. See, Bray v. Alexandria Women's Health Clinic. 506 U.S. 263, 335, 113 S.Ct. 753, 794, 122 L.Ed.2d 34 (1993) ("[t]he criminal statutes, 18 U.S.C. § 241 and 18 U.S.C. § 242, require specific intent to violate a right"). Consequently, it is clear that plaintiff's present allegations present no cause for referral to the United States Attorneys.
The Court is persuaded by the scholarly and cogent opinion of the United States District Court for the Western District of Pennsylvania,United States v. Panza. 381 F. Supp. 1133 (W.D.Penn. 1974), concluding that private citizens have no right to institute criminal prosecutions in federal court. See, also, Dugar v. Coughlin, 613 F. Supp. 849 (S.D.N.Y. 1985) (no private right of action under 18 U.S.C. § 242); United States ex rel. Savage v. Arnold. 403 F. Supp. 172 (E.D. Pa. 1975) (essential role of government in the prosecution of criminal violations precludes complaint by private citizens and court may, sua sponte. refer private citizen's complaint to the U.S. attorney); Dixon v. State of Md. by Carter. 261 F. Supp. 746 (D.C. Md. 1966) (prisoner could not personally institute criminal proceeding against state and its officers for violation of his rights under color of law and should send any such complaint to U.S. attorney).
The remedy requested by plaintiff is that this Court issue a ruling declaring the defendants must be impeached; however, the Constitution vests "the sole Power of Impeachment" in the House of Representatives. U.S. Const. art. I, § 2, cl. 5. This process produces articles of impeachment resembling an indictment which trigger the "sole Power" of the Senate to "try all Impeachments." Id. art. I, § 3, cl. 6. Thus, to the extent plaintiff is seeking any remedy from this Court which could result in the defendants' trials of impeachment, plaintiff has failed to state a claim on which relief can be granted.
Lastly, the Court liberally construes plaintiff's complaint pursuant toHaines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). In light of plaintiff's attempt to prosecute a private action and the fact that the remedy he requests is not a criminal penalty, it is clear that he is not prosecuting an action under Title 18, United States Code, sections 241 and 242. Because these referenced statutes provide criminal penalties for acts which also fall within the scope of Title 42, United States Code, sections 1983 and 1985, Adickes v. Kress. 398 U.S. 144, 189, 90 S.Ct. 1598, 1619, 26 L.Ed.2d 142 (1970) (Justice Brennan, concurring in part and dissenting in part), the Court construes plaintiff's suit as a civil rights suit under sections 1983 and 1985.
The elements of a claim under section 1985 are: (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy. Granville v. Hunt. 411 F.2d 9, 11 (5th Cir. 1969). Plaintiff has failed to allege material facts to support his allegations of conspiracy and has not alleged an intention to discriminate against him. Instead, plaintiff's allegations of conspiracy are conclusory and there is no allegation of fact to support any assertion of intent by the defendants. Each of these is fatal to plaintiffs attempt to state a claim under section 1985, and plaintiff has failed to state a claim on which relief can be granted.
As to plaintiff's claims construed as falling with section 1983, judges enjoy absolute immunity for judicial acts performed in judicial proceedings. Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the `clear absence of all jurisdiction.'" Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978) (quoting Bradley v. Fisher. 13 Wall (80 U.S.) 335, 351, 20 L.Ed. 646 (1872)). Plaintiff's only complaint against the defendants is for allegedly erroneous acts which clearly fall within the scope of acts protected by absolute immunity. Consequently, plaintiff's claim against the defendants lacks an arguable basis in law and is frivolous. Neitzke v. Williams. 490 U.S. 319, 109 S.Ct. 1827.104 L.Ed.2d338 (1989).
CONCLUSION
Plaintiff has failed to state a claim on which relief can be granted. Further, his claims lack an arguable basis in law and are frivolous.Neitzke v. Williams. 490 U.S. 319.109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
IT IS HEREBY ORDERED:
The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.
The Clerk shall correct the docket to show the instant cause as lying under Title 42, United States Code, sections 1983 and 1985, and shall correct the "nature of suit" portion of the docket accordingly.
Pursuant to Title 28, United States Code, section 1915(e)(2), this Civil Rights Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail.