                                                                                                FILED
                                                                                                MAY 19 2009
                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA                                Clerk, U.S. District and
                                                                                            Bankruptcy Courts


Frank E. Voth,                                    )
                                                  )
               Plaintiff,                         )
                                                  )
       v.                                         )
                                                  )
                                                          Civil Action No.         09 0924
Eric Holder et al.,                               )
                                                  )
               Defendants.                        )


                                      MEMORANDUM OPINION

        Plaintiff, who is detained under authority of the state of Oregon in an Oregon detention

facility, has filed a pro se civil rights complaint for injunctive relief, an application to proceed in

forma pauperis, and other motions. The Court will grant the application, construe the complaint

as one for mandamus, and dismiss the complaint.

       The gravamen of plaintiff s complaint is that he has made multiple requests to employees

in the United States Department of Justice to initiate an investigation under the Americans with

Disabilities Act of 1990 into the Board of Parole and Post-Prison Supervision, the Judge, and

Prosecutor "regarding their denying plaintiff an attorney to represent him and appointing an

investigation to assist plaintiff in preparing for trial," but that his requests have not produced

results. CompI. ~~ 2, 3, 8. Plaintiff is of the view that the law requires action by the Justice

Department and that the initiation of an investigation or an enforcement action is not a

discretionary function. Id.   ~   7. As relief, plaintiff seeks a declaratory judgment confirming that

the Justice Department is required to initiate the requested investigations, that the defendants'
failure to act constitutes a violation of the plaintiffs rights, and an injunction compelling the

plaintiffs to act. Id. at 5-6.

        Because of the nature of the relief requested, the Court will construe this complaint as one

in the nature of mandamus, brought under 28 U.S.C. § 1361, to compel an officer ofthe United

States to perform non-discretionary duties owed to the plaintiff. 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 of
State, 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


                                                  2
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). "The federal courts have customarily refused to order

prosecution of a particular individuals at the insistence of private persons." Nader v. Saxbe, 497

F.2d 676, 679 n.18 (D.C. 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. § 1915(e)(2)(B)(ii).

        A separate order accompanies this memorandum opinion.




Date:   ~   A1&r 2cdj
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