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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DAVID WADE, NO. 505226, §

Plaintiff, §

§

v. § No. 3:05-CV-0629-B

§

DALLAS MORNING NEWS CO., §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in

implementation thereof, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his

signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil complaint brought by a state prisoner.

Parties: Plaintiff is currently residing at the Michaels Unit in Tennessee Colony, TX. Defendant

is the provider of the Dallas Morning News. The court has not issued process in this case. 

Statement of Case: David Wade (“Wade” or “Plaintiff”) alleges that he mailed $500.00 in

January 2005 to the Dallas Morning News Company for a two year subscription to the Dallas

Morning News. He further alleges that he has not received copies of said newspaper. Plaintiff

seeks damages in the amount of $500.00 or, in the alternative, that felony theft charges be

brought against Defendant.

Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His

complaint is, thus, subject to screening under 28 U.S.C. § 1915, which imposes a screening

 

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1Although Wade is currently incarcerated, he does not seek to bring suit against a

governmental agency, therefore 28 U.S.C. § 1915A is inapplicable. See Berry v. Brady, 192

F.3d 504, 507 (5th Cir. 1999)(“A prisoner's complaint against a governmental entity or an

officer or employee of a governmental entity may be dismissed as frivolous, malicious, or for

failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b). Dismissal

of an IFP complaint on similar grounds is likewise authorized by 28 U.S.C. § 1915(e)(2)(B)(i) &

(ii).”)

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responsibility on the district court. Section 1915 reads in pertinent part as follows:

 Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that ...

(B) the action or appeal --

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted. § 1915(e).1

Section 1915(e)(2)(B) provides for sua sponte dismissal if the Court finds that the

complaint is “frivolous” or that it “fails to state a claim upon which relief may be granted.” A

complaint is frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989). A complaint fails to state a claim upon

which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-

46, 78 S.Ct. 99, 102 (1957).

Plaintiff’s complaint does not allege a cause of action “arising under the Constitution,

laws, or treaties of the United States.” 28 U.S.C. § 1331. Therefore, the only basis for federal

jurisdiction is pursuant to diversity of citizenship. See 28 U.S.C. § 1332. However, in the

present action the parties are not diverse nor is the minimum amount in controversy requirement

met. As there is no basis for federal jurisdiction, this action must be dismissed.

Plaintiff seeks to have Defendant charged with felony theft. However, “a private party

may not enforce criminal statutes through a civil action.” Mass v. McDonald's Corp., 2004 WL

 

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2624255 *5 (N.D. Tex. Nov. 12, 2004), citing Ruston v. Bush, 2002 WL 108414 *3 (N.D. Tex.

Dec.20, 2001), quoting Hassell v. United States, 203 F.R.D. 241, 244 (N.D. Tex.1999). 

Plaintiff’s complaint is frivolous and should be dismissed..

RECOMMENDATION

It is therefore recommended that all Plaintiff’s civil claims be dismissed without

prejudice and that Plaintiff’s criminal claims be dismissed with prejudice.

A copy of this recommendation shall be mailed to Plaintiff.

SIGNED this 11th day of May, 2005.

_________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

 In the event that you wish to object to this recommendation, you are hereby notified 

 that you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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