                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 17 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LAWRENCE L. KELLY,

                Plaintiff-Appellant,

    v.                                                  No. 02-3114
                                                 (D.C. No. 01-CV-4078-RDR)
    JOHN ROCKEFELLER, Dr.; PETER                           (D. Kan.)
    LEPSE, Dr.; WILLIAM LEEDS, Dr.;
    STORMONT-VAIL MEDICAL
    CENTER; KANSAS
    REHABILITATION HOSPITAL;
    SELECT SPECIALTY HOSPITAL,
    RON LINQUIST, Dr.; JAMES
    WARREN, Dr.,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Lawrence L. Kelly appeals the dismissal of his claims against the

hospitals and medical personnel who cared for plaintiff’s now-deceased mother.

Because plaintiff had no authority to enforce criminal statutes and lacked standing

to bring his mother’s civil rights claims, we affirm.

       Beginning in May 1999, plaintiff’s mother was hospitalized in three

different facilities as she suffered two strokes, amputations of both feet, high

potassium levels from advanced diabetes, and congestive heart failure. Plaintiff’s

mother died on July 15, 1999.

       On June 25, 2001, plaintiff brought this federal action against the three

hospitals and the five doctors who treated his mother. Plaintiff based his claims

on two criminal statutes, 18 U.S.C. § 241 and § 245, and two civil rights statutes,

42 U.S.C. § 1981 and § 1982. His pro se complaint alleged that defendants

conspired against his mother because of her race, and that they gave her

inadequate medical treatment amounting to murder. Plaintiff alleged that the

doctors committed fraud and tortured his mother based on her race. The

complaint also contained state law medical malpractice claims.

       On October 31, 2001, the district court granted a motion to dismiss filed by

the hospitals and three of the doctors. The district court dismissed the claims


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under 18 U.S.C. § 241 and § 245 for failure to state a claim, because plaintiff, as

a private citizen, was not authorized to enforce criminal statutes. The court

dismissed the civil rights claims because plaintiff lacked standing to bring his

mother’s claims, and even if he had standing, he had not shown state action or

that his mother was denied a legal or property right based on her race. On that

same date, plaintiff filed a “Complaint in Intervention,” seeking to add his mother

and brother as parties, to add claims under 42 U.S.C. § 1985 and § 1986, and to

repeat his negligence claims.

      On March 18, 2002, the district court granted the fourth doctor’s motion to

dismiss for the reasons identified in the previous order; dismissed the claims

against the fifth doctor for lack of service; and struck the “Complaint in

Intervention” because neither plaintiff nor his brother had standing to raise their

mother’s claims, which could be brought only by the legal representative of her

estate. The court declined to exercise supplemental jurisdiction over plaintiff’s

state law claims.

      We review the sufficiency of a complaint de novo, upholding the district

court’s dismissal for failure to state a claim only “where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him an opportunity to amend.” Perkins v. Kan. Dep’t of Corrections, 165 F.3d




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803, 806 (10th Cir. 1999). We also review questions of standing de novo.

Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998).

       The district court correctly dismissed plaintiff’s claims under 18 U.S.C.

§ 241 and § 245, for failure to state a claim, because the criminal statutes do not

provide for private civil causes of action.     See Newcomb v. Ingle , 827 F.2d 675,

677 n.1 (10th Cir. 1987) (noting § 241 does not authorize a private right of

action); Cok v. Cosentino , 876 F.2d 1, 2 (1st Cir. 1989) (same);     see generally

Diamond v. Charles , 476 U.S. 54, 64-65 (1986) (holding that private citizens

cannot compel enforcement of criminal law). Further, § 245 explicitly reserves

the right of prosecution to government officials.     See 18 U.S.C. § 245(a)(1).

Because plaintiff could not have amended these claims to assert a cause of action,

the district court properly dismissed them.

       The district court was also correct in holding that plaintiff lacked standing

to bring his mother’s civil rights claims. A civil rights action “must be based on

the violation of plaintiff’s personal rights, and not the rights of someone else.”

Archuleta v. McShan , 897 F.2d 495, 497 (10th Cir. 1990). In        Archuleta , we held

that a child lacked standing to bring a civil rights claim based on the alleged

violation of his father’s constitutional rights; and that the child, who was not the

object of the alleged constitutional violations, could not assert a deliberate




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deprivation of his own rights.     Id. at 496-98. The same considerations apply to

plaintiff’s civil rights claims.

       We also agree with the district court’s dismissal of plaintiff’s “Complaint

in Intervention.” For the reasons outlined above, neither plaintiff nor his brother

could bring a civil rights action based on the alleged violation of their mother’s

rights. Further, because plaintiff’s mother was deceased, an action could not be

brought in her name. Although plaintiff could have brought a federal civil rights

action on behalf of his mother’s estate as her appointed personal representative,

see Carter v. City of Emporia , 543 F. Supp. 354, 356-57 (D. Kan. 1982), his suit

was not brought in such a capacity. Thus the district court did not err in

dismissing the “Complaint in Intervention.”

       Plaintiff argues that he had a right to sue for the wrongful loss of a family

member. Although this is true, such claims arise under state law, and should be

brought in a state court. The federal civil rights laws do not impose liability “for

violations of duties of care arising out of tort law.”   Archuleta , 897 F.2d at 496.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

                                                         Entered for the Court


                                                         Mary Beck Briscoe
                                                         Circuit Judge


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