Opinion
Case No. 8:10-CV-1797-T-30TBM.
December 28, 2010
ORDER
Before the Court is Plaintiff's Motion to Refile Complaint and Public Request (Dkt. 4) in which Plaintiff requests the Court reopen this action to allow Plaintiff to amend his complaint to withdraw his request to have this Court seize the record from his state court criminal proceedings, and instead request the Court send his complaint to the United States Attorney to have Defendants criminally prosecuted. First, Plaintiff's request must be denied because this Court previously dismissed Plaintiff's complaint for failure to state a claim upon which relief may be granted, and closed this case. Because there is no pending complaint, there is nothing to amend. Cf. United States v. Terrell, 141 Fed. Appx. 849, 852 (11th Cir. 2005) ("[T]here was no pending § 2255 motion in the district court when Mr. Terrell filed his motion and, hence, there was nothing to amend."). Second, "[t]his court cannot direct that a federal prosecution occur; authority to investigate and initiate criminal complaints rests exclusively with federal prosecutors." United States ex rel. Stolls v. Martin, 2006 U.S. Dist. LEXIS 48880, at *8 (N.D. Fla. June 2, 2006) (citing Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2nd Cir. 1973); Young v. Herald, 2005 U.S. Dist. LEXIS 38002, 2005 WL 1048117 (E.D. Ky. 2005)). Further, "[b]ecause the [motion] on its face is insufficient to establish probable cause, this court will decline to forward it to the office of the United States Attorney for review. Id. at *9 (citing United States ex rel. Savage v. Arnold, 403 F.Supp. 172, 173 (E.D.Pa. 1975)).
Plaintiff also asserts that the Florida Department of Correction has subjected him to unspecified "misconduct." He requests the Court provide him with a form for filing a civil rights complaint pursuant to 42 U.S.C. § 1983.
Accordingly, the Court ORDERS that:
1. Plaintiff's Motion to Refile Complaint and Public Request (Dkt. 4) is DENIED.
2. The Clerk of Court shall mail a copy of the civil rights complaint form to Plaintiff with his copy of this Order.DONE and ORDERED in Tampa, Florida on December 28, 2010.