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FLEMING v. WESTFALL

May 10, 2005.

JOHN FLEMING, Plaintiff,
v.
MARK WESTFALL, et al., Defendants.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

Plaintiff, John Fleming, incarcerated at the Federal Correctional Center, Beaumont, Texas at the time he filed the instant complaint, seeks to bring this action in forma pauperis without prepayment of fees pursuant to 28 U.S.C. § 1915. Based on Plaintiff's affidavit of indigence, the Court will grant his application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the complaint.*fn1

  At this time, the Court must review the complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the following reasons, Plaintiff's complaint will be dismissed.

  BACKGROUND

  The following factual allegations are taken from Plaintiff's Complaint and are accepted as true for purposes of this review.

  Plaintiff seeks to sue two Burlington County assistant prosecutors, defendants Westfall and Bernardi, stating that they "performed acts of bad faith in violation of H.R. 3396 Citizen's Protection Act of 1998, 28 U.S.C. 530B, rules of ethics, and violations of constitutional law." In particular, Plaintiff claims that these defendants are liable to him because of violations concerning his underlying state court criminal charges and/or convictions; including absence of probable cause to indict, discovery and evidentiary misstatements, and violations of rules of ethics.

  Plaintiff asks for relief under 28 U.S.C. § 530B, the Constitution, and the Hyde Amendment. Specifically, he asks that the acts of these defendants be referred to a grand jury, that they be dismissed from their positions, with a loss of pension and retirement benefits, and that they are referred to the ethics committee. He also asks for dismissal of the charges against him.

  DISCUSSION

  A. Section 1915 Review

  In 1996, Congress enacted the Prison Litigation Reform Act ("PLRA"), Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996). Congress's purpose in enacting the PLRA was "primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Tort Claims Act . . . many of which are routinely dismissed as legally frivolous." Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). A crucial part of the congressional plan for curtailing meritless prisoner suits is the requirement, embodied in 28 U.S.C. § 1915A(b), that a court must dismiss, at the earliest practicable time, any prisoner actions that are frivolous or malicious, fail to state a claim, or seek monetary relief from immune defendants. "A pro se complaint may be dismissed for failure to state a claim only if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

  In determining the sufficiency of a complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court should "accept as true all of the allegations in the complaint and reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, lend credit to a pro se plaintiff's "bald assertions" or "legal conclusions." Id.

  B. 28 U.S.C. § 530B

  Plaintiff seeks to bring this action alleging a violation of the "Citizen's Protection Act of 1998," 28 U.S.C. § 530B. That statute, however, applies to attorneys of the Federal Government, mandating that federal attorneys be subject to ethical standards dictated by state laws and rules, and local federal court rules in the state where the attorney practices. See 28 U.S.C. § 530B; see also 28 C.F.R. § 77.1, et seq. In this case, Plaintiff seeks to sue two state prosecutors, not federal attorneys.

  Furthermore, the statute cited by Plaintiff does not "create a right or benefit, substantive or procedural, enforceable at law by a party to litigation with the United States, including criminal defendants . . . and shall not be a basis for dismissing criminal or civil charges or proceedings. . . ." 28 C.F.R. § 77.5. Therefore, Plaintiff's claims under § 530B will be dismissed for failure to ...


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