discriminatory refusal of a local prosecutor to bring misdemeanor charges against her husband for nonsupport under a Texas criminal statute. Her action met with dismissal in the lower court, and that dismissal was upheld by the Supreme Court because (410 U.S. at 619 (citations omitted)):
This Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks the judicially cognizable interest in the prosecution or nonprosecution of another.
That principle has since been held in Leeke to apply with equal force to the efforts of inmates to call upon Section 1983 to cause criminal charges to be brought against prison guards who allegedly beat them. As our Court of Appeals has stated succinctly in the context of prosecutorial immunity, "victims of crime cannot compel prosecution of offenders or collect damages from passive prosecutors" ( Buckley v. Fitzsimmons, 919 F.2d 1230, 1240 (7th Cir. 1990), reentered following remand, Nos. 89-2441, 89-2899 and 89-2900, slip op. (7th Cir. Jan. 2, 1992)).
Accordingly this Court finds no arguable legal basis for the Complaint, and it denies Rial's motion for leave to file in forma pauperis (see Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989)). In accordance with the procedure prescribed by Smith-Bey v. Hospital Administrator, 841 F.2d 751, 758 (7th Cir. 1988), this action is dismissed with prejudice pursuant to 28 U.S.C. § 1915(d) and Rial's motion for appointment of counsel is denied as moot. In addition Rial is informed:
1. If he wishes to appeal this order of dismissal, within 30 days after the entry of judgment he must file a Notice of Appeal to the United States Court of Appeals for the Seventh Circuit (see Fed. R. App. P. 4 (a)). That Notice of Appeal must be filed with the Clerk of the Court of the United States District Court, 219 South Dearborn Street, 20th Floor, Chicago, Illinois 60604.
2. Although this Court of course expresses no substantive views on this subject, Rial should also be aware that if the Court of Appeals were to determine that such an appeal were "frivolous" in the legal sense, that could result in the imposition of sanctions by that Court (see Fed. R. App. P. 38).
Milton I. Shadur
United States District Judge
Date: January 27, 1992