United States District Court, D. Maine
ANTONIOS N. DIMOULAS, on behalf of minor children T.D. and A.D., Plaintiff,
CHRIS ALMY, Defendant
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(e)
C. Nivison U.S. Magistrate Judge
action, Plaintiff attempts to assert a claim against
Defendant Chris Almy, the District Attorney for Penobscot
County, based on Defendant's failure to institute
criminal charges against an individual by whom Plaintiff
alleges he was assaulted on July 2, 2014. (Complaint, ECF No.
filed an application to proceed in forma pauperis (ECF No.
3), which application the Court granted. (ECF No. 5.) In
accordance with the in forma pauperis statute, a preliminary
review of Plaintiff's complaint is appropriate. 28 U.S.C.
a review of Plaintiff's complaint pursuant to 28 U.S.C.
§ 1915(e)(2), I recommend the Court dismiss
federal in forma pauperis statute, 28 U.S.C. § 1915, is
designed to ensure meaningful access to the federal courts
for those persons unable to pay the costs of bringing an
action. When a party is proceeding in forma pauperis,
however, “the court shall dismiss the case at any time
if the court determines, ” inter alia, that the action
is “frivolous or malicious” or “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). “Dismissals [under § 1915] are
often made sua sponte prior to the issuance of process, so as
to spare prospective defendants the inconvenience and expense
of answering such complaints.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
considering whether a complaint states a claim for which
relief may be granted, courts must assume the truth of all
well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A
complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
a pro se plaintiff's complaint is subject to “less
stringent standards than formal pleadings drafted by lawyers,
” Haines v. Kerner, 404 U.S. 519, 520 (1972),
this is “not to say that pro se plaintiffs are not
required to plead basic facts sufficient to state a claim,
” Ferranti v. Moran, 618 F.2d 888, 890 (1st
Cir. 1980). To allege a civil action in federal court, it is
not enough for a plaintiff merely to allege that a defendant
acted unlawfully; a plaintiff must affirmatively allege facts
that identify the manner by which the defendant subjected the
plaintiff to a harm for which the law affords a remedy.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff alleges that although he submitted to Defendant a
report of an incident in which Plaintiff was the victim of an
assault, Defendant “did not do his job.” (ECF No.
1.) Plaintiff, therefore, asserts a claim based on
Defendant's decision not to prosecute a criminal charge
against the perpetrator of the assault.
United States Supreme Court has made clear that prosecutors
have wide discretion when deciding whether to initiate a
In our criminal justice system, the Government retains
“broad discretion” as to whom to
prosecute.” United States v. Goodwin, 457 U.S.
368, 380, n. 11 (1982); accord, Marshall v. Jerrico,
Inc., 446 U.S. 238, 248 (1980). “[S]o long as the
prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before
a grand jury, generally rests entirely in his
discretion.” Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978). This broad discretion rests largely on the
recognition that the decision to prosecute is particularly
ill-suited to judicial review.
Wayte v. United States, 470 U.S. 598, 607 (1985).
See also United States v. Armstrong, 517 U.S. 456,
464 (1996) (“Judicial deference to the decisions of
these executive officers rests in part on an assessment of
the relative competence of prosecutors and courts.”);
United States v. Nixon, 418 U.S. 683, 693 (1974)
(“the Executive Branch has exclusive authority and
absolute discretion to decide whether to prosecute a
case”); Oyler v. Boles, 368 U.S. 448, 456
(1962) (“[T]he conscious exercise of some selectivity
in enforcement is not in itself a federal constitutional
violation.”). The broad discretion exercised by
prosecutors is subject only to a prohibition against
“selective enforcement ‘based upon an
unjustifiable standard such as race, religion, or other
arbitrary classification.'” United
States v. Batchelder, 442 U.S. 114, 125 n.9 (1979)
(quoting Oyler, 368 U.S. at 456).Plaintiff has
failed to assert any facts that would suggest Defendant's
decision was not within his broad discretion.
a prosecutor such as Defendant is entitled to immunity
against civil liability for the decision whether to initiate
a prosecution. Imbler v. Pachtman, 424 U.S. 409, 431
(1976) (“[I]n initiating a prosecution and in
presenting the State's case, the prosecutor is immune
from a civil suit for damages under [§] 1983.”);
Harrington v. Almy, 977 F.2d 37, 40 (1st Cir. 1992)
(“[T]he interest that prosecutorial immunity is
designed to protect-independence in the charging decision-is
implicated whether the decision is to initiate a prosecution
or decline to do so.”).
assuming, arguendo, that prosecutorial immunity against civil
liability is constrained by the Equal Protection Clause, any
exception to immunity would not apply to Plaintiff's
claim. The Supreme Court has held that “a citizen lacks
standing to contest the policies of the prosecuting authority
when he himself is neither prosecuted nor threatened with
prosecution.” Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973). “[I]n American jurisprudence ...