United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
Kierra Martin for leave to proceed in forma pauperis in this
civil action. Upon consideration of the motion and the
financial information provided therein, the Court concludes
that plaintiff is unable to pay the filing fee. The motion
will therefore be granted. Additionally, the Court will
dismiss the complaint, without prejudice.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted. An action is frivolous if it “lacks an
arguable basis in either law or fact.” Neitzke v.
Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief may be granted if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
Court must liberally construe complaints filed by laypeople.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
means that “if the essence of an allegation is
discernible,” the court should “construe the
complaint in a way that permits the layperson’s claim
to be considered within the proper legal framework.”
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). However, even pro se complaints must allege facts
which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113 (1993).
brings this action against one Robert L. Swearingen, who
plaintiff indicates is an attorney with Legal Services of
Eastern Missouri (also “LSEM”). Plaintiff may
have intended to also bring this action against LSEM,
although she did not include LSEM’s name in the caption
of her complaint. Plaintiff avers that she and Swearingen are
Missouri citizens, and that LSEM is incorporated in Missouri.
She invokes this Court’s federal question jurisdiction,
and states she brings this action pursuant to 18 U.S.C.
§ 242. She also cites “US Code 42, Chapter 21
civil rights violation, fraud upon court,” and she
indicates that LSEM is a federal agency. (Docket No. 1 at 5).
claims she suffered “personal injury, emotional
distress on me and my son” in December of 2017.
Id. In support, she alleges:
Was sent to office for assistant. And he told me good luck.
Defendant handle the case with no care. And caused person
injury. And handle this case with no care. I sent letters,
etc. Caused negligence on my behalf
Id. As relief, plaintiff states she seeks
“person injury compensation for me and my son and to
fix my name.” Id. She also seeks monetary
relief in the amount of $20,000.
states she brings this case pursuant to 18 U.S.C. § 242,
which criminalizes acting willfully and under color of state
law to deprive persons of federally-protected rights.
However, as a private citizen, plaintiff has no authority to
initiate a federal criminal investigation or prosecution, nor
can this Court compel such action. The Executive Branch has
exclusive authority and absolute discretion to decide whether
to initiate a federal criminal prosecution. U.S. v.
Nixon, 418 U.S. 683, 693 (1974), Ray v. Dep’t
of Justice, 508 F. Supp. 724, 725 (E.D. Mo. 1981);
see also Mitchell v. McNeil, 487 F.3d 374, 378 (6th
Cir. 2007) (“There is no statutory or common law right,
much less a constitutional right, to an
investigation”), Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (“a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another”). Plaintiff also indicates
an intent to proceed pursuant to 42 U.S.C. § 21.
However, that section has been repealed. Finally, LSEM is not
a federal agency.
extent plaintiff can be understood to claim that Swearingen
and/or LSEM violated her civil rights, 42 U.S.C. § 1983
is applicable. Section 1983 was designed to provide a
“broad remedy for violations of federally protected
civil rights.” Monell v. Department of Social
Services, 436 U.S. 658, 685 (1978). Section 1983
provides no substantive rights; it merely provides a remedy
for violations of all “rights, privileges, or
immunities secured by the Constitution and laws [of the
United States].” 42 U.S.C. § 1983. To state a
claim under 42 U.S.C. § 1983, a plaintiff must
establish: (1) the violation of a right secured by the