United States District Court, W.D. Kentucky, Bowling Green Division
THOMAS EDWARD BURKE, Jr. PLAINTIFF
PEOPLE OF THE STATE OF KENTUCKY et al. DEFENDANTS
N. STIVERS, JUDGE.
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.
SUMMARY OF CLAIMS
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.
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.
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.
relief, Plaintiff asks for compensatory and punitive damages
and injunctive relief of “stopping the wrongfull
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).
declaration that the City of Bowling Green is
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
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.