United States District Court, District of Columbia
BAHIG F. BISHAY, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.
matter 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. §
1915(e)(2)(B)(ii), mandating dismissal of a complaint which
fails to state a claim upon which relief can be granted.
a resident of Norwood, Massachusetts, sues the U.S.
Department of Justice, the Federal Bureau of Investigation,
Christopher A. Wray, and James 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.
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. § 1361. A plaintiff 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 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 "(1) 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. Holder,
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.
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 of Labor, 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." Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973); see also Sargeant v.
Dixon, 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 Attorney 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"); Sibley v.
Obama, 866 F.Supp.2d 17, 22 (D.D.C. 2012) (holding
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) (per curiam); see also
Jafree 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. Nixon, 418 U.S. 683, 693 (1974); see also
Powell, 359 F.2d at 234-35; Shoshone-Bannock
Tribes, 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.
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 ...