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BROWN v. DUGGAN

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


July 15, 1971

Joseph BROWN, Plaintiff,
v.
Robert DUGGAN et al., Defendants

McCune, District Judge.

The opinion of the court was delivered by: MCCUNE

MEMORANDUM AND ORDER

McCUNE, District Judge.

 Joseph Brown, an inmate of the State Correctional Institution at Graterford, Pennsylvania, *fn1" has addressed two documents to this Court. One is captioned "Criminal Complaint" and the other is a Petition to Proceed in Forma Pauperis. The "Criminal Complaint" alleges that the complainant's defense counsel and the District Attorney of Allegheny County conspired to obtain complainant's conviction. Complainant asks for relief in the form of the arrest of his former defense attorney, service of a summons on the District Attorney and lastly, $5,000.00 damages. The authority cited by the complainant as the basis for jurisdiction is 18 U.S.C.A. §§ 241, 242. *fn2"

  Although the inclusion of the prayer for money damages clouds the issue, we conclude that what is before us is an attempt to initiate a criminal proceeding. We will disregard the prayer for money damages since the cited sections do not allow for civil recovery. *fn3" Complainant's inclusion of this prayer can be viewed as an understandable error.

 Commencement of a criminal proceeding is governed by Rules 3 and 4 of the Federal Rules of Criminal Procedure. Rule 3 sets forth the requirements for a valid pre-arrest complaint. *fn4" Rule 4 describes the circumstances under which a warrant or summons shall issue. *fn5" The document here submitted falls short of the Rule 3 requirements for a valid complaint. It does not state the "essential facts constituting the offense charged" *fn6" and though it is sworn to, the oath was administered by a notary public not by an "officer empowered to commit persons charged with offenses against the United States." *fn7"

 The interpretation to be given Criminal Rules 3 and 4 was set out by the Supreme Court in Giordenello v. United States, 357 U.S. 480, 485-486, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958). There the Court pointed out that Rules 3 and 4 were to be read so as to afford Fourth Amendment protection. *fn8" Bearing this in mind, we hold that the requirements of Rules 3 and 4 must be strictly complied with so as to preclude the mischief which would result if arrest warrants were issued upon less than substantial grounds. Casual accusations cannot be the basis for a person's being deprived of his liberty. The criminal process of the courts shall be invoked only if the complaining party goes before an officer having power to order persons committed for offenses against the United States. Before such an officer the complainant shall swear to the allegations of his complaint. The importance of personal appearance is apparent both from the Fourth Amendment and Rule 4. The officer receiving the complaint must make a determination of probable cause, and in the event he finds probable cause he is required under Rule 4 to issue criminal process, i.e., to order the person of the accused seized. *fn9" Prior to his exercising this power, the issuing officer is required to personally examine the complainant with regard to both the information contained in the complaint and the source of that information. *fn10"

 Inquiry into the question of probable cause (Rule 4) is not really necessary under the instant complaint, for as noted above it does not state the essential facts constituting a violation of 18 U.S.C.A. §§ 241, 242. The complaint states that the various defendants conspired to obtain complainant's conviction, but there are no factual allegations to support this accusation. The complaint does state some facts but these all relate to the complainant's former defense counsel. It is alleged that defense counsel caused the complainant to plead guilty by telling him that the District Attorney had eye witnesses to the crime when in fact there were no eye witnesses. There is no allegation that the District Attorney was a party to this representation. From these allegations we conclude that although the District Attorney is named as a defendant, the complaint accuses defense counsel alone. We hold further that the actions of an individual attorney are not carried out under the color of law. *fn11"

 Our requirement that the complainant meet the requirements of Criminal Rules 3 and 4 is not unreasonable. The Fourth Amendment rights of attorneys and public prosecutors are entitled to the same degree of protection as the rights of other persons. To enable convicted persons to cause arrest warrants to issue against prosecutors and defense counsel on loosely drafted complaints creates obvious dangers. If investigation is required, a complaint should be addressed to the United States Attorney who is charged with the duty of investigating bona fide criminal activity. *fn12"

 We do not believe our action in this case is similar to a sua sponte dismissal of a Civil Rights Complaint. It is therefore not necessary for us to make a determination that the complaint is frivolous or malicious, 28 U.S.C.A. § 1915(d). The petition to proceed in forma pauperis is denied and the complaint is ordered dismissed. *fn13"

 It is so ordered.


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