Opinion
2:02-CV-0035
February 5, 2002
REPORT AND RECOMMENDATION
Plaintiff HOWARD GUNNER, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit on the forms promulgated for use in pro se prisoner civil rights cases complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains that, on April 10th the inmate trust fund issued a check to defendants in payment for some books plaintiff ordered, as authorized by plaintiff. Although the check was cashed on April 30th, he never received the books. Defendant PUBLISHERS BUSINESS SERVICES appears to be the entity which wrongfully took plaintiffs money, and defendant GILMAN is alleged to be an Attorney General who has all of plaintiffs documentation but has failed to satisfactorily resolve the matter. Plaintiff states his money was stolen through mail fraud and asks to be compensated for his "mental anguish and financial stress theft."
JUDICIAL REVIEW
Title 28, United States Code, section 1915(e)(2) provides:
[T]he court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2). Thus, the very statute allowing plaintiff to proceed as a pauper also requires the Court to screen a pauper's complaint and dismiss it without service of process at any time the Court makes a determination of frivolousness.
Although plaintiff is a prisoner, his suit in no way concerns prison conditions or the acts or omissions of any official. Consequently, the Court reviews this cause under the statutory provisions applicable to all in forma pauperis complaints.
The Magistrate Judge has reviewed plaintiffs 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
Federal district courts are courts of limited jurisdiction and handle cases in which a "federal question" is presented, such as an issue arising out of federal law, treaty, or the federal constitution, Title 28, United States Code, section 1331; or cases in which the amount in controversy exceeds $75,000.00 and the opposing parties are (1) citizens of different States, (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; or (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States, Title 28, United States Code, section 1332.
Plaintiff may be trying to base federal jurisdiction upon an allegation of mail fraud; however, mail fraud is a criminal offense defined in Title 18, United States Code, section 1341, and private citizens have no right to institute criminal prosecutions in federal court. United States v. Panza, 381 F. Supp. 1133 (W.D.Perm. 1974). 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). There is no private cause of action under the federal mail fraud statutes. Bell v. Health-Mor. Inc., 549 F.2d 342, 346 (5th Cir. 1977).
Further, although the defendants appear to be citizens of another state, there is no indication that the loss of the novels plaintiff ordered would support a claim of damages for more than $75,000.00. Thus, diversity jurisdiction is also absent in this case.
In fact, it appears plaintiff is attempting to assert a civil action of fraud, which, if resolved by way of a lawsuit, must be pursued in state court.
CONCLUSION
For the reasons set forth above, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Complaint filed by plaintiff HOWARD GUNNER be DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION.
IT IS SO RECOMMENDED.