CLD-164                                                        NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3645
                                       ___________

                                      ARI BAILEY,
                                               Appellant

                                             v.

          BRUCE BRANDLER; G. MICHAEL THIEL; JOANNE HOFFMAN
                  ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3-17-cv-02106)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 29, 2018
     Before: CHAGARES, GREENAWAY, Jr., and GREENBERG, Circuit Judges

                               (Opinion filed: June 7, 2018)
                                       _________

                                        OPINION *
                                        _________
PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Ari Bailey, a federal prisoner proceeding pro se, appeals an order of the United

States District Court for the Middle District of Pennsylvania dismissing his petition for a

writ of mandamus pursuant to 28 U.S.C. § 1361. For the reasons that follow, we will

affirm the judgment of the District Court.

       Bailey seeks a writ of mandamus compelling Bruce Brandler, G. Michael Thiel,

and Joanne Hoffman of the United States Attorney’s Office for the Middle District of

Pennsylvania to investigate, indict, and prosecute sixteen prison employees who he

alleges obstructed and stole his mail in violation of 18 U.S.C. §§ 371, 1702, and 1708.

The District Court ruled that Bailey did not satisfy the standard for mandamus relief and

dismissed his petition. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is

plenary. Harmon Cove Condo. Ass’n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987).

       The district courts have original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States or any agency thereof

to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. Mandamus relief under

§ 1361 is available only where a defendant owes a plaintiff a clear nondiscretionary duty.

Heckler v. Ringer, 466 U.S. 602, 616 (1984). Mandamus relief is unavailable here

because the decision of a United States Attorney to prosecute a person is discretionary.

See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973)

(affirming dismissal of a complaint in mandamus to compel the United States Attorney to

investigate, arrest, and prosecute state officials for committing federal offenses).
                                              2
         Bailey contends that the defendants owe him a duty under 28 U.S.C. § 535(b), but

this provision requires that information “witnessed, discovered, or received in a

department or agency of the executive branch of the Government relating to violations of

Federal criminal law involving Government officers and employees” be reported to the

Attorney General. The statute does not require an investigation. See 28 U.S.C. § 535(a)

(providing the Attorney General “may investigate” such a violation). Section 535(c)(2),

also relied upon by Bailey, provides only that this section does not limit the primary

authority of the Postmaster General to investigate postal offenses. 1

         Finally, Bailey suggests in a document attached to his notice of appeal that the

District Court erred by not affording him leave to amend his mandamus petition, but the

rule requiring that leave to amend be granted sua sponte applies in civil rights actions.

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.

2007).

         Accordingly, because this appeal does not present a substantial question, we will

summarily affirm the judgment of the District Court.




1
 Because Bailey has not shown that the defendants owe him a nondiscretionary duty, we
do not consider the District Court’s rationale in dismissing the petition.
                                              3
