Opinion
MC420-010
11-25-2020
IN RE GARY T. OSTERHOUT
REPORT AND RECOMMENDATION
Pro se party Gary T. Osterhout has filed several documents that purport to be criminal complaints. See doc. 1. They are submitted on forms provided by the Administrative Office of the U.S. Courts. See, e.g., id. at 1 (Form AO 91). Two of the "complaints" allege interference in the 2020 presidential election by Lindsey Graham, U.S. Senator for the State of South Carolina. Id. at 1, 3. Two other "complaints" allege that Emily Murphy, the General Services Administration's Administrator, has violated the Presidential Transition Act of 1963. Id. at 2, 4. The Court is not convinced that these documents have any legal effect at all, for the reasons explained below. However, to the extent that they might appear to have any such effect, they should be DISMISSED and this case should be CLOSED.
The docket reflects that the filing party's name as "Osterhout," but the documents appear to have been prepared by "Gary T. Osterhoudt." See, e.g., doc. 1 at 1 (emphasis added). Since the documents themselves are without any apparent effect, the exact spelling of the filer's name is irrelevant. --------
Private citizens are simply not permitted to initiate criminal actions in federal court. See, e.g., Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) ("No citizen has an enforceable right to institute a criminal prosecution." (citing Linda R. v. Richard V., 410 U.S. 614, 619 (1973) ("In American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.")); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) ("[A] private citizen has no authority to initiate a federal criminal prosecution."). The Court is also without authority to order the United States Attorney to initiate a prosecution. See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2nd Cir. 1973) (citations omitted) ("federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the insistence of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made[,] . . . even in cases . . .where . . . serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system."). Such orders would violate the Constitution's separation of powers between the Executive and Judicial Branches. See id. at 379-80 (quotes and cite omitted) (the United States Attorney, although a member of the bar and an officer of the court, "is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case."). Osterhout's "complaints," therefore, should be DISMISSED.
This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Report and Recommendations." Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F. App'x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 25th day of November, 2020.
/s/_________
CHRISTOPHER L. RAY
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA