Joseph W. Higgins, Plaintiff-appellant, v. Donice Neal, et al., Defendants-appellees, 52 F.3d 337 (10th Cir. 1995)

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U.S. Court of Appeals for the Tenth Circuit - 52 F.3d 337 (10th Cir. 1995) April 12, 1995


Before MOORE, BARRETT and EBEL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered submitted without oral argument.

Joseph W. Higgins ("Higgins"), a prisoner at the Colorado State Penitentiary in Canon City, Colorado, filed a criminal complaint against Donice Neal, the warden of that facility, and thirty-one Colorado Department of Corrections employees. The criminal complaint alleged that they conspired to violate his civil rights and unlawfully torture him. The district court dismissed the complaint on the ground that private citizens lack standing to commence criminal prosecutions. Higgins now appeals to this Court. For the reasons stated below, we affirm the judgment of the district court.2 


Before we address the merits of this appeal, we must first examine whether we have jurisdiction to consider this action. Our jurisdiction in this case turns on whether this action is criminal or civil in nature. Before turning to this issue, we will briefly review the procedural posture of this case.

On March 15, 1994, the district court entered an order dismissing, for a lack of standing, Higgins' pro se criminal complaint under Fed. R. Crim. P. 3. Within ten days after this order was entered, Higgins filed a "motion to strike." While this motion was pending, Higgins filed a notice of appeal on April 4, 1994. The district court denied the "motion to strike" on April 21, 1994.

If this action were to be considered a civil appeal, we would not have jurisdiction because, in cases where a party files a post-trial motion, "the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding," Fed. R. App. P. 4(a) (4), and Higgins filed this appeal before the order disposing of his motion to strike. However, if we consider this action to be a criminal appeal, then the "notice of appeal filed after the announcement of [the] decision, sentence, or order--but before entry of the judgment or order--is treated as filed on the date of and after the entry." Fed. R. App. P. 4(b). We consider this action to be a criminal appeal. Therefore, the fact that the notice of appeal was filed before the entry of the order denying the motion to strike is of no consequence, and we proceed to consider the merits of Higgins' appeal.

On appeal, Higgins elaborates on the allegations made in his complaint, but fails to cite any authority countering the district court's judgment that he lacked standing to commence a criminal prosecution against the prison officials sued in the instant case. To support its judgment, the district court relied on Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964) (per curiam) and Bass Angler Sportsman Soc'y v. United States Steel Corp., 324 F. Supp. 412, 415 (S.D. Ala.) (outlining "the firmly established principle that criminal statutes can only be enforced by the proper authorities of the United States Government and a private party has no right to enforce these sanctions"), aff'd, 447 F.2d 1304 (5th Cir. 1971). Not only do we find these authorities persuasive, we note that courts universally endorse the principle that private citizens cannot prosecute criminal actions. See, e.g., Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam) ("Only the United States as prosecutor can bring a complaint under 18 U.S.C. 241-242 (the criminal analogue of 42 U.S.C.1983)") (citations omitted); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86 (2d Cir. 1972) ("It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not as has sometimes been done in Anglo-American jurisdictions by private complaints."); Winslow v. Romer, 759 F. Supp. 670, 673 (D. Colo. 1991) ("Private citizens generally have no standing to institute federal criminal proceedings."). Because allowing private citizens to initiate prosecutions would undermine prosecutorial discretion and the authority of federal prosecutors, we conclude that Higgins lacks standing to maintain this criminal action.3 

For the reasons explained above, the district court's dismissal of the instant case is AFFIRMED. The mandate shall issue forthwith.


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470


As the district court did not grant Higgins' application to proceed in forma pauperis pursuant to 28 U.S.C.1915(a), we now do so on appeal


That is not to say that Higgins' allegations, if true, must go unprosecuted. Higgins may refer his complaint to the United States Attorney's Office. See Herbert B. Chermside, Jr., Annotation, Power Of Private Citizen To Institute Criminal Proceedings Without Authorization Or.App.roval By Prosecuting Attorney, 66 A.L.R.3d 732, 734 n. 7, 735 n. 10 (1975) (noting that this is the practice recommended by the Judicial Conference of the United States and the American Bar Association)