MEMORANDUM AND ORDER
Honorable John Morgan Davis,.
Relator, appearing pro se, has filed this somewhat unusual petition for habeas corpus relief. Already pending before the Court is a civil action in which relator sought to commence a criminal proceeding against the individual defendants under Title 18 U.S.C. §§ 241, 242. Leave to proceed in forma pauperis was denied in this regard because of the failure of petitioner to comply with the requirements of Rules 3 and 4 of the Rules of Criminal Procedure. Specifically, it was found the the complaint did not state "the essential facts constituting the offense charged" nor was it sworn to before a magistrate. Thus, no determination of probable cause could properly be made. (See, Report and Recommendation of the U.S. Magistrate in Civil Action 74-3205). Relator now desires to file a new "civil and criminal action", and having taken the past decision of the Court to heart, he requests a writ of habeas corpus directing that he be brought before a magistrate in order that he may satisfy the requirements of the criminal Rules.
Other courts have dealt with similar situations where prison inmates have attempted to initiate criminal actions. Most often the right to proceed has been denied on the basis of Rules 3 and 4. See, e.g. United States v. Blierley, 331 F. Supp. 1182 (W.D. Pa. 1971); Brown v. Duggan, 329 F. Supp. 207 (W.D. Pa. 1971); United States ex rel. Spader v. Wilentz, 25 F.R.D. 492 (D.N.J); aff'd 280 F.2d 422 (3d Cir.) cert. denied 364 U.S. 875, 81 S. Ct. 120, 5 L. Ed. 2d 97 (1960). Relator obviously seeks to overcome the procedural hurdle set up by these cases, and our own ruling in his earlier civil action by being brought before a magistrate on a writ. There are, however, many troublesome problems with the institution of such a private criminal complaint. Because this Court finds no right on the part of the petitioner on his own to commence a criminal proceeding, and because the complaint he would file is itself insufficient on its face to establish probable cause, we must deny the petition.
We note initially that while the matter before the Court is relator's amended petition for a writ of habeas corpus, we must necessarily focus our attention on the "Civil and Criminal Complaint" which he wants to file, and which is appended to his petition. Although the only relief demanded in this complaint is for money damages, we cannot disregard relator's apparent intention to initiate a criminal proceeding. Of course, were we to treat the matter as seeking solely civil remedies, the issues we reach could be avoided since a civil complaint can be filed without an appearance before a judicial officer. But relator has all too clearly addressed himself in his petition to the Court's prior rulings denying him leave to proceed on the basis of the criminal statutes.
We are disposed to deal with these issues so that hopefully we may resolve the matter conclusively.
In considering relator's petition that he be brought before a magistrate so that he may swear to the allegations of his proposed complaint, we must first determine whether or not, under our Rules, a private citizen may initiate a criminal proceeding. There is no abundance of authority on this point. What authority there is has established the following as a general proposition: "Although a private citizen is not barred by the Rules from instituting a complaint before a magistrate, he may not do so as a matter of right." 8 Moore's Federal Practice § 3.05 at p. 3-7, and citations therein. Myriad problems, of course, would flow from a contrary rule. As Professor Moore has stated:
"The broader issue which this presents is the scope of the government's control over the prosecution of crime. It would avail a private citizen little to have his complaint accepted by the magistrate -- and perhaps even have the accused arrested and bound over -- only to have the matter die because of the prosecutor's refusal to present the case to the grand jury. Theoretically, the grand jury could be induced to act, but even here the prosecutor might be able effectively to obstruct the filing of an indictment."
Moore's Federal Practice, supra, at p. 3-8.
The courts that have faced the issue have concluded that the essential role of the government (i.e. the U.S. Attorney) in the prosecution of criminal violations must of necessity preclude complaints by private citizens. See, Keenan v. McGrath 328 F.2d 610 (1st Cir. 1964); Pugach v. Klein, 193 F. Supp. 630, 637 (S.D.N.Y. 1961).
Rather than permit private complaints to be filed, it has been suggested that such matters be referred to the United States Attorney. Brown v. Duggan, supra, at 210. In fact, this is the specific practice recommended by the Judicial Conference of the United States:
"In all cases . . . where a private citizen complains, it is a good practice, since the burden of prosecution will fall on the United States Attorney's office, that the complainant should be referred to the United States Attorney before a complaint is filed, at least in absence of an emergency requiring immediate action of the commissioner." Manual for United States Commissioners, 5 (1948).