                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit

                                                                                 NOV 7 1997
                       UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                            PATRICK FISHER
                                                                                     Clerk


 BRETT KENNETH MILLER,

                Petitioner,                                   No. 97-3033
           v.                                                 (D. Kansas)
 UNITED STATES ATTORNEY,                               (D.C. No. 96-3538-RDR)

                Respondent.


                              ORDER AND JUDGMENT*


Before ANDERSON , HENRY, and BRISCOE, 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. The case is therefore ordered

submitted without oral argument.

       Brett Kenneth Miller, an inmate at U.S.P. Leavenworth, filed an action in the

district court against the United States Attorney for the District of Kansas. The pleading


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
is entitled “Writ of Habeas Corpus.” It alleges that Miller’s Fourteenth Amendment right

to equal protection is being violated because

       the cops and staff at this prison have committed more than 75 felonies
       against the petitioner, [i.e.] statute [18 U.S.C. § 242], statute [18 U.S.C.
       § 1001], and violating a federal prisoner[’]s right (statute omitted), and the
       U.S. Attorney is not prosecuting these felon officials for the felonies that
       they committed against the petitioner, (also committed mail theft and
       assault.)
               When prison officials commit over 75 felonies against a prisoner, it
       is the U.S. Attorney[’]s job and obligation to prosecute these criminal
       officials for the felonies they committed.
               Petitioner wants these cops and prison staff arrested and prosecuted
       in court for the felonies that they committed against the petitioner, by a
       prosecutor out of this district.

Petitioner’s Memorandum of Law at 4-6. The district court correctly dismissed the action

since it does not state a claim for relief recognized under the statutes providing for writs

of habeas corpus.

       Even reading the complaint liberally as an attempt to sue the United States

Attorney for violating Miller’s civil rights,1 it fails every test. The allegations fail to state

anything but a conclusion, violating the Federal Rules of Civil Procedure. More to the

point, Miller’s allegations do nothing more than impermissibly attack matters of

prosecutorial discretion. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A]

private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution




       1
        See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

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of another.”); Leeke v. Timmerman, 454 U.S. 83, 85-86 (1981) (same); Dohaish v.

Tooley, 670 F.2d 934, 937 (10th Cir. 1982) (same).

       Finally, the prosecutor is entitled to immunity with respect to decisions not to

prosecute, acts “intimately associated with the judicial phase of the criminal process.”

Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see Brodnicki v. City of Omaha, 75 F.3d

1261, 1268 (8th Cir.), cert. denied, 117 S. Ct. 179 (1996); Hammond v. Bales, 843 F.2d

1320, 1321 (10th Cir. 1988); Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir. 1982).

Such absolute immunity applies equally to state and federal prosecutors. See Thompson

v. Walbran, 990 F.2d 403, 404 (8th Cir. 1993); Schrob v. Catterson, 948 F.2d 1402, 1408

(3d Cir. 1991); Ehrlich v. Guiliani, 910 F.2d 1220, 1222 n.2 (4th Cir. 1990); Demery v.

Kupperman, 735 F.2d 1139, 1143-44 (9th Cir. 1984); Yaselli v. Goff, 12 F.2d 396, 406

(2d Cir. 1926).

       We conclude that this case is civil in nature and subject to the filing fee

requirements under 28 U.S.C. § 1915 which were imposed by the district court. We also

conclude that this appeal is frivolous, requiring dismissal pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i), and for purposes of counting “prior occasions” under 28 U.S.C.

§ 1915(g).




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DISMISSED. The mandate shall issue forthwith.

                               Entered for the Court


                               Stephen J. Anderson
                               Circuit Judge




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