FILED

UNITEI) sTATEs DISTRICT CoURT . APR.B g mg

FOR THE DISTRICT OF COLUMBIA

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griggs for the D\str\ct of Co\umb\a

BAHIG F. BISHAY, )
Plaintiff, §
v. l § Civil Action No. l:l9-cv-01045 (UNA)
U.S. DEPARTMENT OF JUSTICE, et al., § ,
Defendants. §
MEMORANDUM OPINION

 

This matterl is before the Court on its initial review of plaintiffs pro se complaint
(“Compl.”) and application for leave to proceed in forma pauperis The Court will grant the in
forma pauperis application and dismiss the case pursuant to 28 U.S.C. § l9lS(e)(2)(B)(ii),
mandating dismissal of a complaint which fails to state a claim upon which relief can be granted

Plaintiff, a resident of Norwood, Massachusetts, sues the U.S. Department of Justice, the
F ederal Bureau of Investigation, Christopher A. Wray, and J ames A` Crowell, IV. He alleges that
his constitutional rights have been violated because defendants have declined to investigate and
prosecute an alleged existing criminal conspiracy to steal his property. Plaintiff alleges that this
conspiracy involves a state judge and twenty-three other individuals, none of whom are named in
this lawsuit. Plaintiff essentially seeks mandamus relief, requesting that the Court demand that
defendants investigate and prosecute these alleged crimes.

The extraordinary remedy of a writ of mandamus is available to compel an “offrcer or
employee of the United States or any agency thereof to perform a duty owed to plaintiff.” 28
U.S.C. § 1361. A plaintiff bears a heavy burden of showing that his right to a writlof mandamus

is “clear and indisputable.” In re Cheney, 406 F.3d 72_3, 729 (D.C. Cir. 2005) (citation omitted).

krup\cy

“It is well-settled that a writ of mandamus is not available to compel discretionary acts.” Cox v.
Sec'y of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990) (citing cases). “[M]andamus is ‘drastic’; it is
available only in ‘extraordinary situations.”’ Cheney, 406 F.3d at 729 (citations omitted). Only if
“(l) a plaintiff has a clear right to relief, (2) a defendant has a clear duty to act, and (3) there is no
other adequate remedy available to the plaintiff,” Thomas v. Hola'er, 750 F.3d 899, 903 (D.C. Cir.
2014), is mandamus relief granted. Plaintiff fails to establish any of these elements, and thus fails
to meet his burden.

This court has no authority to compel these defendants to initiate a criminal investigation
or to prosecute a criminal case. See Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C.
Cir. 1995) (citations omitted); see also Cox v. Sec'y ofLabor, 739 F. Supp. 28, 30 (D.D.C. 1990)
(citing cases). The decision of whether or not to prosecute, and for what offense, rests with the
prosecution See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). “[I]n American
jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Ll'na'a R.S. v. Richara’ D., 410 U.S. 614, 619 (1973); see also Sargeant
v. Dz'xon, 130 F.3d 1067, 1069 (D.C. Cir. 1997); Powell v. Katzenbach, 359 F.2d 234, 234-35
(D.C. Cir. 1965) (per curiam) (concluding that mandamus “will not lie to control the exercise” of
Attomey General's discretion to decide whether or when to institute criminal prosecution), cert.
denied, 384 U.S. 906 (1966); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (refusing to
recognize constitutional right “as a member of the public at large and as a victim to have the
defendants criminally prosecuted”); Sz`bley v. Obama, 866 F. Supp. 2d 17, 22 (D.D.C. 2012)
(holding same).

Plaintiff cannot compel a criminal investigation by any law enforcement agency. See Otero

v. U.S. Attorney General, 832 F.2d 141, 141-42 (11th Cir. 1987) Q)er curiam); see also Jaj?'ee v.

Barber, 689 F.2d 640, 643 (7th Cir. 1982). The Executive Branch has absolute discretion to decide
whether to conduct an investigation or prosecute a case and such decisions are not subject to
judicial review. United States v. Nz'xon, 418 U.S. 683, 693 (1974); see also Powell, 359 F.2d at
234-35; Shoshone-Bannock Trz`bes, 56 F.3d at 1480-81. “[A]n agency's decision not to prosecute
or enforce, whether through civil or criminal process, is a decision generally committed to an
agency's absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). For these same
reasons, the Court has no jurisdiction to award the other damages sought by plaintiff

As such, the complaint is subject to dismissal under 28 U.S.C. §§ 1915(e)(2)(B)(ii) for
failure to state a claim upon which relief may be granted. An Order consistent with this

Memorandum Opinion is issued separately.

 

 

United States District\.ludge

Date: AprilD/L § , 2018

