                                                                                      FILED
                                                                                       MAY 26 2009
                              UNITED STATES DISTRICT COURT                       Clerk, U.S. District and
                              FOR THE DISTRICT OF COLUMBIA                         Bankruptcy Courts



Felton L. Matthews, Jr.,

                 Plaintiff,

        v.                                           Civil Action No.
                                                                             09 0976
Eric Holder et al.,

               Defendants.


                                  MEMORANDUM OPINION

        Plaintiff, a prisoner, has filed a pro se complaint for mandamus and an application to

proceed in forma pauperis. The Court will grant the application, and dismiss the complaint for

mandamus for failure to state a claim upon which relief may be granted. 28 U.S.C.

§ 1915A(b)(I).

        The plaintiff, through a complaint for mandamus pursuant to 28 U.S.C. § 1651, asks this

court to order the "U.S. Government to protect, investigate, and if necessary, prosecute" certain

individuals for mail tampering and for conspiracy to tamper with the mail. Compl., cover sheet.

Plaintiffs concern is "why did three Las Vegas, NV judges, a D.A. and CCDC and NDOC actors

plot to get me attacked and raped (which failed), and why is the conduct following me." Compl

at 1.

        The remedy of mandamus "is a drastic one, to be invoked only in extraordinary

circumstances." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Only

"exceptional circumstances" warranting "a judicial usurpation of power" will justify issuance of

the writ. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,289 (1988) (internal
quotation marks omitted)); see also Doe v. Exxon Mobil Corp., 473 F.3d 345, 353 (D.C. Cir.

2007) (stating that mandamus is "an extraordinary remedy reserved for really extraordinary

cases") (internal quotation marks and citation omitted). Mandamus is available only if "(1) the

plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no

other adequate remedy available to plaintiff." In re Medicare Reimbursement Litigation, 414

F.3d 7, 10 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)).

With respect to the first two requirements, mandamus is available "only where the duty to be

performed is ministerial and the obligation to act peremptory and clearly defined. The law must

not only authorize the demanded action, but require it; the duty must be clear and indisputable."

Lozada Colon v.   Us.    Dep't ojState, 170 F.3d 191 (D.C. Cir. 1999) (internal quotation marks

and citation omitted).

        The complaint does not, and on these facts cannot, establish either that plaintiff has a

clear right to the relief requested or that the defendants have a clear duty to perform a ministerial,

clearly defined, and peremptory act. It is beyond serious debate that the police power of the state

- that is vested in the executive branch to determine when and whether to initiate an

investigation into law violations, and when and whether to prosecute law violations -         is a

discretionary function. "Prosecutorial decisions as to whether, when and against whom to initiate

prosecution are quintessential examples of governmental discretion in enforcing the criminal law

.... " Gray v. Bell, 712 F.2d 490,513 (D.C. Cir. 1983). This well-settled rule is one of long-

standing. See The Confiscation Cases, 74 U.S. 454, 456 (1868); United States v. Nixon, 418 U.S.

683, 693 (1974). "The federal courts have customarily refused to order prosecution of particular

individuals at the instance of private persons." Nader v. Saxbe, 497 F.2d 676,679 n.18 (D.C.


                                                    2
Cir. 1974) (collecting and discussing cases). Because the plaintiff seeks mandamus relief, but

cannot show that he is entitled to it, the complaint will be dismissed without prejudice for failure

to state a claim upon which relief may be granted against these defendants. 28 U.S.C.

§ 1915A(b)(1).

        A separate order accompanies this memorand




Date:   I5'Mitt 2l)o~




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