United States District Court, E.D. California
ORDER DISMISSING CASE FOR FAILURE TO STATE A CLAIM,
WITH PREJUDICE (ECF NO. 1.) ORDER THAT THIS DISMISSAL IS
SUBJECT TO THE “THREE-STRIKES” PROVISION SET
FORTH IN 28 U.S.C. § 1915(G). ORDER FOR CLERK TO CLOSE
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Raymond McCoy (“Plaintiff”) is a state prisoner
proceeding pro se with this action. Plaintiff filed the
Complaint commencing this action on November 28, 2016, in the
U.S. District Court for the Northern District of California.
(ECF No. 1.) On December 9, 2016, the case was transferred to
the Eastern District of California. (ECF No. 4.)
January 3, 2017, Plaintiff consented to Magistrate Judge
jurisdiction in this action pursuant to 28 U.S.C. §
636(c), and no other parties have made an appearance. (ECF
No. 8.) Therefore, pursuant to Appendix A(k)(4) of the Local
Rules of the Eastern District of California, the undersigned
shall conduct any and all proceedings in the case until such
time as reassignment to a District Judge is required. Local
Rule Appendix A(k)(3).
January 24, 2017, and February 15, 2017, Plaintiff filed
notices to the court, claiming that the court erroneously
filed this case as a civil rights action under 42 U.S.C.
§ 1983, when Plaintiff intended to file a criminal
complaint. (ECF Nos. 13, 14.) Plaintiff requested the court
to correct this error and allow this case to proceed as a
February 17, 2017, the court issued an order to show cause,
requiring Plaintiff to show cause why this case should not be
dismissed for lack of standing. (ECF No. 15.) On March 9,
2017, Plaintiff filed a response to the court's order.
(ECF 16.) Plaintiff argues that he has a right to bring a
criminal complaint and to request the court to issue arrest
warrants against defendants, citing a variety of Federal
Rules of Criminal Procedure, case law, and federal statutes.
reliance on the law he cites is misplaced, and his arguments
have no merit. It is well settled that only the U.S. Attorney
can initiate criminal proceedings in federal court.
Rhodes v. Robinson, 399 F. App'x 160, 165 (9th
Cir. 2010) (citing See Keenan v. McGrath, 328 F.2d
610, 611 (1st Cir. 1964) (per curiam) (State
prisoner could not initiate criminal prosecution in his own
name in federal court by complaint alleging that state
officers had conspired to deprive him of rights and seeking
criminal prosecution of them). Based on the foregoing, Plaintiff
has no standing to bring a criminal complaint against any of
the defendants. Therefore, Plaintiff's Complaint fails to
state a claim upon which relief may be granted.
CONCLUSION AND ORDER
court finds that Plaintiff's Complaint fails to state any
cognizable claims upon which relief may be granted. The court
also finds that the deficiencies outlined above are not
capable of being cured by amendment, and therefore further
leave to amend should not be granted. 28 U.S.C. §
1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122,
1127 (9th Cir. 2000).
IT IS HEREBY ORDERED that:
1. This case is dismissed for failure to state a claim upon
which relief may be granted, with prejudice;
2. All pending motions are denied as moot;
3. This dismissal is subject to the
“three-strikes” provision set forth in 28 U.S.C.