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RIAL v. BURMILA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


January 27, 1992

LARRY J. RIAL, Plaintiff,
v.
EDWARD BURMILA, et al., Defendants.

Shadur

The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

Larry J. Rial ("Rial") has tendered a self-prepared Complaint in which he invokes 42 U.S.C. § 1983 ("Section 1983") to seek declaratory, injunctive and monetary relief against prosecuting officials of Will County, Illinois ("County")--its State's Attorney Edward Burmila and one of his assistants, plus the "State's Attorney's Office" (although the latter is of course not a legal entity--instead under Ill. Const. art. § 19 the constitutional office is that of the State's Attorney himself). *fn1" Rial asks leave to file his Complaint in forma pauperis and moves for appointment of counsel.

 On January 18, 1990 state prison officers transported Rial to the County Courthouse in Joliet, Illinois. Rial got into a scuffle with County deputy sheriffs as he passed through the County Jail on his way back to the prison. That assault is the subject of another Section 1983 suit that Rial has pending before this Court (Rial v. Nash, No. 91 C 175 filed Jan. 18, 1991 *fn2" ).

 But Rial wants more than a recovery of civil damages from the County deputies who allegedly assaulted him--he also wants to have them criminally prosecuted. Toward that end he has written the County State's Attorney two letters in which he requests that criminal charges be pressed against the County deputies involved in the incident. Having received no response to those letters, he now asks in his current pleading (1) for "a permanent injunction forcing the Will County State's Attorney's Office to allow the plaintiff to bring criminal charges against the Will County Deputy Sheriff's that beat him. . ." and (2) for a modest award of damages ($ 5 million in compensatory damages and $ 5 million in punitive damages against each defendant) for denying him the opportunity to bring criminal charges.

 Rial lacks standing to litigate the federal claims that he proffers here. *fn3" That is the clear teaching of Linda R.S. v. Richard D., 410 U.S. 614, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973) and Leeke v. Timmerman, 454 U.S. 83, 70 L. Ed. 2d 65, 102 S. Ct. 69 (1981) (per curiam). In Linda R.S. the mother of an illegitimate child sought to enjoin the assertedly 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


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