United States District Court, N.D. Alabama, Northeastern Division
C. BURKE UNITED STATES DISTRICT JUDGE
Dwayne O'Neal, proceeding pro se, filed a complaint
against the United States of America, Inc., and T. Patrick
Martin, Chief U.S. Attorney, Criminal Division, Department of
Justice. (Doc. 1). In essence, he seeks an order from this
court compelling the United States and the Department of
Justice to respond to his administrative claim demanding that
the Department of Justice commence a criminal investigation
and prosecution against Empire Fire and Marine Insurance and
it s employees “for misrepresenting availability of
commercial insurance to deny security after a crash” in
which Plaintiff was not involved. Plaintiff also filed an
Application for Leave Without Prepaying Fees and Costs. (Doc.
2). The court GRANTS Plaintiff's
Application. However, for the reasons set out herein, the
court DISMISSES this action WITH
PREJUDICE for failing to state a claim on which
relief can be granted.
28 U.S.C. § 1915 provides, in relevant part:
(e)(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that-
(B) the action or appeal--
(i) is frivolous or malicious; [or]
(ii) fails to state a claim on which relief may be granted; .
. . .
conducting its review of Plaintiff's complaint, the court
is mindful that complaints by pro se litigants are
held to a less stringent standard than pleadings drafted by
attorneys and subject to liberal construction . Boxer X
v. Harris, 437 F.3d 1107, 1110 (11th Cir.
2006). However, the court “may not serve as de facto
counsel for a party . . . or rewrite an otherwise deficient
pleading in order to sustain an action.” Ausar-Elex
rel. Small, Jr. v. BAC (Bank of America) Home Loans Servicing
LP, 448 Fed.Appx. 1, 2 (11th Cir. 2011)
(internal quotations and citations omitted).
attempt to obtain a court order requiring the Department of
Justice to respond to his demand to investigate and prosecute
various entities has no support in case law. The separation
of powers doctrine precludes a court from ordering a
prosecution by the United States Attorney, and federal courts
have no authority to order state or federal law enforcement
agencies or prosecutors to initiate investigations or
prosecutions. See Otero v. U.S. Attorney Gen., 832
F.2d 141, 141 (11th Cir. 1987); United States
v. Ballard, 779 F.2d 287, 295 (5th Cir.)
(“A decision to prosecute is within the United States
Attorney's substantial discretion....”), cert.
denied, 475 U.S. 1109 (1986); United States v.
Spence, 719 F.2d 358, 361 (11th Cir. 1983)
(“As a general rule, the courts are not free to
interfere with the prosecuting officer's discretionary
decision to prosecute crime.”); Inmates of Attica
Corr. Facility v. Rockefeller, 477 F.2d 375, 379-82 (2d
Cir. 1973) (affirming the dismissal of a complaint seeking
the investigation and prosecution of persons who allegedly
violated federal and state criminal statutes); Logan v.
Hall, 604 Fed.Appx. 838, 841 (11th Cir. 2015)
(decisions of what criminal acts to investigate and of what
acts and persons to prosecute are entrusted by the
Constitution “to the executive branch of the government
and not the judiciary”); Wise v. Heddell, No.
CIV.A. 509-CV-127 (C A R), 2010 WL 2688730, at *4 (M.D. Ga.
July 1, 2010) (“the in vestigation and prosecution of
crimes is subject to executive discretion, and this Court has
no authority to compel the Department of Defense or the
Attorney General to initiate such an investigation or
prosecution.”). Further, a private citizen has no
judicially cognizable interest in the prosecution or
non-prosecution of another. Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 767 n.13 (2005); Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973); Weaver v.
Mateer and Harbert, P.A., 523 Fed.Appx. 565, 568
on the foregoing, the court will DISMISS
this action WITH PREJUDICE. See 28
U.S.C. § 1915(e)(2)(B). The court will enter a separate
 The court also notes Plaintiff sued
Empire Fire and Marine Insurance and others in the United
States District Court for the District of Nevada.
O'Neal v. Empire Fire & Marine Ins. Co., No.
2:16-cv-02313-JCM-CWH (D. Nev.). That court dismissed his
complaint pursuant to principles of res judicata and
collateral estoppel, for lack of standing, and as failing to
state a claim. O'Neal, No. 2:16-cv -23 13
-JCM-CWH, 2017 WL 4638226 (D. Nev. Oct. 13, 2017), af
f'd, 735 Fed.Appx. 352 (9th Cir. 2017).
Thereafter, it declared O'Neal a vexatious litigant,
noting he has brought 108 cases in federal district courts,
courts of appeals, and county courts as a pro se
litigant. O'Neal, No. 2:16-cv-2313-JCM-CWH, 2018
WL 1626031 (D. Nev. April 4, 2018), vacated, 735
Fed.Appx. 352 (9th Cir. Aug. 21, 2018). The
district court also recognized the Eighth Judicial District
Court of Nevada designated plaintiff a vexatious litigant on
April 19, 2017, for pursuing meritless claims arising from
the same facts he presented to the Nevada federal court
Id. at *1. The Ninth Circuit vacated the finding