                                                                                              FILED
                                                                                              JUl 3 1 2009
                            UNITED STATES DISTRICT COURT
                                                                                        Clerk, U.S. District and
                            FOR THE DISTRICT OF COLUMBIA                                  Bankruptcy Courts


William R. Jackson,

               Plaintiff,

       v.                                             Civil Action No.       09 1453
Eric Holder,

               Defendant.


                                  MEMORANDUM OPINION

       Plaintiff, a prisoner serving a state sentence of life imprisonment, 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)(1).

       The plaintiff, through a complaint for mandamus pursuant to 28 U.S.C. § 1361, asks this

court to order "Eric Holder of the U.S. Justice Department to enforce federal law upon the

Georgia State Parole Board of whom violates the citizen of Georgia (parolee) rights to parole

final hearing without them ever waiving that right." CompI. at 5. The plaintiff has not had a

parole hearing since March 2002, and alleges that this is a violation of his constitutional rights.

The plaintiff also discloses that his appeal regarding the detention under attack is now pending

before the United States Court of Appeals for the Eleventh Circuit. CompI. at 6.

       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 ofState, 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 exercise of the

government's power to investigate and prosecute is a discretionary function. This well-settled

rule is one oflong-standing. See The Confiscation Cases, 74 U.S. 454,456 (1868); United States

v. Nixon, 418 U.S. 683, 693 (1974). Because the plaintiff seeks mandamus relief (as opposed to

some other form of relief for the alleged violation of the plaintiffs due process rights), 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).


                                                   2
        A separate order accompanies this memorandum opinion.




Date:
                                                 ~c~
                                                 Un ed States DIstnct Judge




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