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                                                                                            FILED
                             UNITED STATES DISTRICT COURT                                    APR 27 2010
                             FOR THE DISTRICT OF COLUMBIA
                                                                                       Clerk, U.S. District & Bankruptcy
                                                                                      Courts for the District of Columbia
Robert Heard,

                Plaintiff,

        v.                                              Civil Action No.
                                                                                1V 064'1
United States Attorney General,

                Defendant.

                                   MEMORANDUM OPINION

        The plaintiff has filed an application to proceed in forma pauperis and a pro se complaint.

The application will be granted and the complaint will be dismissed pursuant to the Court's

authority under 28 U.S.C. § 1915A(b).

        The complaint is made on a form designed for prisoners bringing a civil rights action

under 42 U.S.C. § 1983. The substance of the complaint, however, shows that it is in the nature

of a petition for a writ of mandamus. As relief, the plaintiff seeks an order requiring the United

States Attorney General to commence "an investigation into the allegations contained in the

complaint [he] filed" with the office of the United States Attorney General in December 2009

and with the Department of Justice Special Litigation Unit in September 2009. Compl. at 6. In

these previous filings with the Department of Justice, the plaintiff had requested an investigation

into the practices of the Georgia Department of Corrections that resulted in alleged "brutal

beatings, killings, loss of body parts, corruption of all sorts, drugs, phones, prostitution etc." Id.

at 4.

        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




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        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. Gulfttream 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 o/State, 170 F.3d 191 (D.C. Cir. 1999) (per curiam) (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 long-standing and firmly rooted in American jurisprudence. See The Confiscation Cases,

74 U.S. 454,456-57 (1868); United States v. Nixon, 418 U.S. 683, 693 (1974). Accordingly, the




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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).




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