ln\

FILED
iutz1 2011

Clerk, U.S. District and
Bankruptcy Courts

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

David Upton, )

Petitioner, §

» s

v. § Civil Action No. 11 1
Andre Birotte Jr., §

Respondent. l

MEMORANDUM OPlNION

This matter is before the Court on its initial review of petitioner’s pro se petition for a
writ of mandamus and application to proceed in forma pauperis The application will be granted
and the case will be dismissed pursuant to 28 U.S.C. § l9l5(e)(2)(B)(i)(ii). Under that statute,
the Court is required to dismiss a case "at any time" it determines that the petition fails to state a
claim upon which relief can be granted or is frivolous

Petitioner, a resident of Hesperia, Califomia, seeks a writ of mandamus under 28 U.S.C.
§ 1361 to compel the United States Attorney for the Central District of California to present
evidence of criminal activity to a federal grand jury. He alleges that United States Magistrate
Judge Patrick J. Walsh committed criminal acts in dismissing his civil actions, see Pet. ‘ll 6, and
he charges Chief Judge Alex Kozinski of the Ninth Circuit and Chief Magistrate Judge Stephen
J. Hillman of the Central District of California with criminal conspiracy for "intentionally,
recklessly, willfully, and wantonly refus[ing] to require Magistrate Judge . . . Walsh to recuse

himself’ from petitioner’s case. Id. 11 10. Hence, petitioner seeks to compel the respondent "to

present criminal charges against" Judges Kozinski, Hillman, Walsh and Chief District Judge
Audrey B. Collins who allegedly referred the case to Walsh. Pet. W 5, 3 l.

The extraordinary remedy of a writ of mandamus is available to compel an "officer or
employee of the United States or any agency thereof to perform a duty owed to plaintiff." 28
U.S.C. § l36l. The petitioner bears a heavy burden of showing that his right to a writ of
mandamus is "clear and indisputable." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)
(citation omitted). "It is well-settled that a writ of mandamus is not available to compel
discretionary acts." Cox v. Sec'y ofLabor, 739 F. Supp. 28, 30 (D.D.C. l990) (citing cases).
Furthermore, the writ is not available if another adequate remedy exists. Swan v. Clinton, 100
F.3d 973, 977 n.l (D.C. Cir. 1996).

The federal appeals process provides an adequate remedy for petitioner to challenge the
adverse rulings of the lower courts, and the United States Attorney General has absolute
discretion in deciding whether to investigate claims for possible criminal or civil prosecution.
See Shoshone-Bannock Trz'bes v. Reno, 56 F.3d 1476, 1480 (D.C. Cir. l995) (citing Powe]l v.
Katzenbach, 359 F.Zd 234-35 (1965)) (other citations omitted). Therefore, petitioner fails to
state a claim for mandamus relief. ln addition, petitioner’s application to compel a criminal
investigation of j udges simply because he disagrees with their rulings lacks “an arguable basis in

law and fact" and, thus, is frivolous. Brandon v. District of Columbz`a Bd. ofParole, 734 F.Zd

56, 59 (D.C, Cir. 1984). A separate Order of dismissal accompanies this Memorandum Opinion.

C’/® v§»@<~' “§@

United States District Judge

ill
Date:July 373 ,2011

