United States District Court, E.D. Pennsylvania
JOHN F. MCGLINCHEY, III Plaintiff,
MICHAEL B. WEINTRAUB, et al. Defendants.
John F. McGlinchey, III, a prisoner incarcerated at the State
Correctional Institution at Coal Township, was the victim of
an assault in 2006. In this civil action, he raises claim
based on his assailant's failure to make payments on
court-ordered restitution. Plaintiff seeks to proceed in
forma pauperis. For the following reasons, the Court
will grant plaintiff leave to proceed in forma
pauperis and dismiss the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii).
was the victim of an assault in 2006. The assailant, Charles
Augustus Gischel Jr. was charged criminally in the Bucks
County Court of Common Pleas, and pled guilty to simple
assault, disorderly conduct, and harassment. He was sentenced
to two years of probation and directed to pay restitution to
plaintiff in the amount of $7, 866.50.
has repeatedly failed to make restitution payments to
plaintiff as ordered. It appears that Gischel was found to
have violated probation three times, apparently for failing
to make payments toward his obligations, and that the account
was referred to a collection agency for several years. In
2014, his probation was terminated, although his obligation
to pay restitution remains open. Gischel still owes plaintiff
$6, 485.50. According to the complaint, he has not made any
payments since 2015.
initiated this lawsuit, pursuant to 42 U.S.C. § 1983
against the Bucks County District Attorney (Matthew
Weintraub) and the probation/parole officer responsible
assigned to Gischel. He also appears to be bringing claims
against Gischel, although Gischel is not named as a defendant
in the caption as required by Federal Rule of Civil Procedure
10. Plaintiff alleges that, as the victim, he only agreed to
a non-custodial sentence because Gischel was required to make
monthly payments to him for restitution. Plaintiff brings
claims against the District Attorney and probation/parole
officer for failing require Gischel to make good on his
restitution obligations and for failing to arrest Gischel
more frequently for violating probation. Plaintiff also
alleges that his case should not have been referred to a
collection agency. In light of Gischel's failure to pay,
Plaintiff wants Gischel to be arrested, held in contempt for
failing to pay restitution, and incarcerated. He would also
like to force the sale of Gischel's possessions to
satisfy his restitution obligation.
STANDARD OF REVIEW
Court grants plaintiff leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fees to commence this civil action. Accordingly, 28
U.S.C. § 1915(e)(2)(B)(i) and (ii) apply, which require
the Court to dismiss the complaint if it is frivolous or
fails to state a claim. A complaint is frivolous if it
"lacks an arguable basis either in law or in fact,
" Neitzke v. Williams, 490 U.S. 319, 325
(1989), and is legally baseless if "based on an
indisputably meritless legal theory." Deutsch v.
United States, 67 F.3d 1080, 1085 (3d Cir. 1995).
a complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains "sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). The plausibility
standard requires more than a "sheer possibility that a
defendant has acted unlawfully, " and is not satisfied
by "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements."
Id. As plaintiff is proceeding pro se, the
Court construes his allegations liberally. Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
Court is sympathetic to plaintiffs situation, as it is
unfortunate that Gischel has not made regular payments toward
restitution. However, there is no basis for a federal lawsuit
here. Plaintiff raises claims pursuant to 42 U.S.C. §
1983 for violation of his constitutional rights based on the
District Attorney and probation/parole officer's failure
to force Gischel to make restitution payments and/or arrest
Gischel for violating probation when he failed to do so. To
the extent he seeks Gischel's arrest or prosecution, his
claims fail because "a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another." See Linda R.S. v.
RichardD., 410 U.S. 614, 619 (1973); Godfrey v.
Pennsylvania, 525 Fed.Appx. 78, 80 n.l (3d Cir. 2013)
(per curiam) ("[T]here is no federal right to require
the government to initiate criminal proceedings.")- Nor
is there any other basis for a claim based on the District
Attorney or probation/parole officer's inability to
require Gischel to abide by his obligation to plaintiff.
also cannot state a constitutional claim against Gischel
because Gischel is not a state actor subject to liability
under § 1983. See West v. Atkins, 487 U.S. 42,
48 (1988) ("To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting
under color of state law."). Even if plaintiff had a
basis for a claim under state law, the Court lacks
jurisdiction over any such claim because it is not clear that
the parties are diverse and the amount in controversy is far
below the jurisdictional threshold of $75, 000. See
28 U.S.C. § 1332. Plaintiff may wish to contact the
state court or the Office of Victim Advocate to determine
what avenues are available to him to help collect on the
restitution he is owed.
foregoing reasons, the Court will dismiss plaintiffs
complaint. Plaintiff will not be given leave to amend because
amendment would be futile. An appropriate ...