United States District Court, E.D. Wisconsin
GLENN M. DAVIS, Plaintiff,
JOHN CHISHOLM, MILWAUKEE CRIME LABORATORY, and WISCONSIN DEPARTMENT OF JUSTICE, Defendants.
ORDER DENYING MOTION TO PROCEED WITHOUT PREPAYMENT OF
THE FILING FEE AND REPORT AND RECOMMENDATION TO
JOSEPH United States Magistrate Judge
November 27, 2019, Glenn M. Davis filed a pro se
complaint against Milwaukee County District Attorney John
Chisholm, the Wisconsin Crime Laboratory, and the Wisconsin
Department of Justice. (Docket # 1.) Davis also filed a motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis). (Docket # 2.) Because
Davis's complaint does not state a claim on which relief
can be granted and amendment would be futile, I will deny his
motion and recommend that the case be dismissed.
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure indigent litigants meaningful
access to the federal courts while at the same time prevent
indigent litigants from filing frivolous, malicious, or
repetitive lawsuits. Nietzke v. Williams, 490 U.S.
319, 324 (1989). To authorize a litigant to proceed in
forma pauperis, the court must first determine whether
the litigant is able to pay the costs of commencing the
action. 28 U.S.C. § 1915(a). Second, the court must
determine whether the action is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
standards for reviewing dismissal for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are the same
as those for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). See DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). In evaluating whether a
plaintiff's complaint fails to state a claim, a court
must take the plaintiff's factual allegations as true and
draw all reasonable inferences in his favor. Id. at
612. Although a complaint need not contain
“‘detailed factual allegations, '” a
complaint that offers “‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
states that his sole monthly income is $700.00 from SSI.
(Docket # 2 at 2.) He does not list itemized expenses other
than $170 for housing, but states that his total monthly
expenses are $700. (Id. at 2-3.) Davis avers that he
has no assets or cash. (Id. at 3-4.) On this
information, I conclude that Davis cannot pay the filing fee
Davis's complaint does not state any claim on which
relief could be granted. Davis complains that the defendants
have failed to provide him with DNA evidence from a
decades-old Wisconsin criminal case,
97CF972482. (Docket # 1.) Davis alleges that the
defendants have told him this evidence does not exist.
(Id. at 1.) Davis believes the defendants have
destroyed the evidence and/or obstructed justice in violation
of 18 U.S.C. §§ 1503, 1505, 2071 and a number of
Wisconsin statutes, and wants the U.S. Attorney to prosecute
the defendants for these actions. (Id. at 1-2;
Docket # 4 at 1-2.) Davis also wants the district attorney(s)
to be prosecuted for withholding evidence before he accepted
a plea agreement, which he believes violated the “clean
hands” doctrine and constituted a Brady
violation; for failing to follow the order of a Milwaukee
County judge that the DNA evidence in question be processed;
and for showing a “pattern of indifference.”
(Docket # 1 at 2.)
construing Davis's complaint liberally, I cannot discern
a cognizable cause of action. Federal law does not authorize
suits by private citizens to compel the U.S. Attorney to
investigate or prosecute crimes. See Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1972) (“[A] private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.”); Bilal
v. Wolf, No. 06 C 6978, 2009 WL 1871676, at *7 (N.D.
Ill. June 25, 2009) (“As a general matter, a victim of
a crime does not have standing to seek the prosecution of the
person who committed the offense. . . . Also, a private
citizen has no standing to initiate a criminal
prosecution.”) (citing Linda R.S., 410 U.S.
614; Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.
1989); Lundy v. United States, No. 07-1008, 2007 WL
4556702 (C.D. Ill.Dec. 21, 2007), modified in other
respects by2008 WL 2510172 (C.D. Ill. June 19, 2008)).
Rather, a person who believes a federal crime has been
committed should notify federal law enforcement.
Davis's other alleged bases for relief, the clean hands
doctrine is not a basis for liability, but an equitable
defense. See Precision Instrument Mfg. Co. v. Automotive
Maintenance Machinery Co., 324 U.S. 806, 814-15 (1945).
Withholding evidence in a criminal case could violate
one's constitutional rights and be cognizable in a habeas
petition under Brady v. Maryland, 373 U.S. 83
(1963), but Davis is plainly not entitled to such relief.
Davis's complaint cannot plausibly be construed as a
habeas challenge; he does not allege that he is currently
under any sentence, names no custodian as a respondent, and
requests no relief from custody. Furthermore, a habeas
challenge on these grounds would be barred by the one-year
deadline for filing under § 28 U.S.C. 2244(d)(1),
not by the dismissal of his 2008 habeas petition.
Davis's complaint fails to state any federal claim, and
there is no likelihood that amendment of the complaint would
cure its defects. Furthermore, with no cognizable federal
claim, this court cannot exercise supplemental jurisdiction
over Davis's Wisconsin law claims. See 28 U.S.C.
§ 1367(c)(3). For these reasons, I will deny his request
to proceed in forma pauperis and recommend that the
action be dismissed.
AND REPORT AND RECOMMENDATION
THEREFORE, IT IS ORDERED that Davis's motion to proceed
without prepayment of the filing fee (Docket # 2) is DENIED.
THEREFORE, IT IS RECOMMENDED that Davis's federal claims
be dismissed with prejudice.
FURTHER RECOMMENDED that Davis's state law claims be
dismissed without prejudice for lack ...