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Burke v. People

United States District Court, W.D. Kentucky, Bowling Green Division

August 14, 2017

THOMAS EDWARD BURKE, Jr. PLAINTIFF
v.
PEOPLE OF THE STATE OF KENTUCKY et al. DEFENDANTS

          MEMORANDUM OPINION

          GREG N. STIVERS, JUDGE.

         Plaintiff, Thomas Edward Burke, Jr., proceeding pro se and in forma pauperis, initiated this 42 U.S.C. § 1983 action. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the following reasons, the complaint will be dismissed.

         I. SUMMARY OF CLAIMS

         Plaintiff is a convicted inmate housed at the Kentucky State Penitentiary (KSP). In 2004, the Warren Circuit Court entered a judgment of conviction on a plea agreement of three counts of first-degree sodomy and sentenced Plaintiff to 27 years in prison. Plaintiff names as Defendants: People of the State of Kentucky; the Commonwealth of Kentucky; attorney Eric R. Clark; Bowling Green, Kentucky, police officer Barry Raley; social worker Marilyn Griffin; and Shannon Burke, Sandra Romines, and Carlos Romines, who Plaintiff identifies as witnesses in his state-court criminal proceedings.

         First, Plaintiff alleges that the City of Bowling Green has violated provisions of the act under which it was incorporated and that the “Defendant Corporation the city of Bowling is now therefore . . . dissolved.” He alleges that his “contract (plea agreement) is void in violation of the Plaintiff's constitutional rights because tainted statements were put before the grand jury. He alleges that perjury occurred during his state-court criminal proceeding in violation of various sections of the federal criminal code, Title 18 of the U.S. Code. In particular, he cites to 18 U.S.C. §§ 1001, 1031, 1622, and 1919. He states that he is entitled to recover from the City of Bowling Green the amount of $300, 000 in damages.

         Within his complaint, Plaintiff appears to have copied motions filed in state court related to his 2004 state-court conviction. In those motions, he argues that statements he made in Defendant Raley's patrol car were inadmissible at trial. He complains that his trial counsel, Defendant Clark, was ineffective. He further argues that his wife has recanted her statement that Plaintiff sexually abused his children.

         As relief, Plaintiff asks for compensatory and punitive damages and injunctive relief of “stopping the wrongfull imprisonment.”

         II. ANALYSIS

         When a prisoner initiates a civil action seeking redress from a governmental entity, officer, or employee, the trial court must review the complaint and dismiss the action, if the Court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff has stated a claim upon which relief can be granted, the Court must construe the complaint in a light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         Plaintiff's declaration that the City of Bowling Green is dissolved

         Plaintiff alleges that the City of Bowling Green violated the provisions of the act under which it was incorporated. Therefore, according to Plaintiff, the City of Bowling Green “has forfeited its charter and has become liable to be dissolved by the abuse of its power.” Plaintiff offers no authority authorizing him to declare the City of Bowling Green's charter to be dissolved, and, of course, he has no such authority. The Court will not consider this assertion further.

         Criminal statutes

         Plaintiff's citations to Title 18 of the United States Code are to no avail. That title of the U.S. Code contains criminal statutes, and there is no authority to allow a private citizen to institute a criminal action in a federal court; that power is vested exclusively in the executive branch. See United States v. Nixon, 418 U.S. 683, 693 (1974). Therefore, any violation of sections of the federal criminal code does not give rise to an independent, private cause of action. Morganroth & Morganroth v. DeLorean, 123 F.3d 374, 386 (6th Cir. 1997); see also Fuller v. Unknown Officials from the Justice Dep't Crime Div., 387 F. App'x 3, 4 (D.C. Cir. 2010) (per curiam) (stating that “there is no private cause of action for perjury, 18 U.S.C. § 1621; subornation of perjury, 18 U.S.C. § 1622; false declarations before a grand jury or court, 18 U.S.C. § 1623; or false statements, 18 U.S.C. § 1001”). Consequently, Plaintiff has failed to state a claim for which relief can be granted regarding these allegations.

         Claims related ...


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