Hodges v. Wiegand ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL LEE HODGES, SR., )
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Petitioner, )
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v. ) Civil Action No. 15-1941 (RC)
)
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WILLIAM BARRY WIEGAND, III, et al., )
)
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Respondents. )
MEMORANDUM OPINION
Petitioner, a federal prisoner proceeding pro se, seeks a writ of mandamus to compel an
Assistant United States Attorney and the Department of Justice’s Office of Professional
Responsibility to perform a duty petitioner contends is required by 28 C.F.R. §§ 45.11, 45.12 and
0.39a. For the reasons explained below, the Court will deny the petition and dismiss the case
pursuant to 28 U.S.C. § 1915A(b)(1). 1
1. LEGAL STANDARD
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. § 1361. A 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) (en
banc) (citation omitted). Relief through mandamus may only be granted where: (1) the
petitioner has a “clear right to relief”; (2) the respondent has a “clear duty to act”; and (3) there is
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Section 1915A requires a court to screen a prisoner’s complaint against a governmental
entity, officer or employee “as soon as practicable after docketing” and to dismiss the complaint
upon determining that it fails to state a claim upon which relief may be granted.
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“no other adequate remedy available” to the petitioner. Walpin v. Corp. for Nat. & Cmty. Servs.,
630 F.3d 184, 187 (D.C. Cir. 2011) (quoting Baptist Mem'l Hosp. v. Sebelius, 603 F.3d 57, 62
(D.C. Cir. 2010)). Even when those requirements are met, “whether mandamus relief should
issue is discretionary,” and it “is hardly ever granted.” In re Cheney, 406 F.3d at 729.
II. DISCUSSION
Section 45.11 of Title 28 of the Code of Federal Regulations imposes a duty on
Department of Justice (“DOJ”) employees to report allegations of fraud or “criminal or serious
administrative misconduct” to DOJ’s Office of the Inspector General (OIG) or to their supervisor
or internal affairs office for referral to OIG. 28 C.F.R. § 45.11(b). Section 45.12 imposes a duty
on DOJ employees to report to the Office of Professional Responsibility (OPR) allegations of
misconduct by a DOJ attorney or “law enforcement personnel when such allegations are related
to allegations of attorney misconduct within [OPR’s] jurisdiction[.]” And § 0.39a imposes a
duty on OPR “to [r]eceive, review, [and] investigate” such allegations and make referrals for
appropriate action.
Petitioner claims that he has “reported to the respondents on several occasions . . . serious
allegations of misconduct and fraud by [DOJ] attorneys and . . . employees.” Pet. at 6. But the
attachments to the petition, like the petition itself, consist of vague allegations stemming from
petitioner’s conviction. Indeed, in his letter to respondent Wiegand, petitioner states that he is
writing “regarding the corruption in my forfeiture case,” and he asks Wiegand “to launch a full
investigation into [his criminal] case and all . . . parties involved with it.” Feb. 11, 2015 Letter to
Barry Wiegand, III, ECF No. 1-1, p.8.
Mandamus relief is not available when an adequate remedy exists to address the
underlying claim. Petitioner ultimately is challenging the validity of his conviction. Such a
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challenge is “the province of habeas corpus,” Muhammad v. Close, 540 U.S. 749, 750 (2004)
(per curiam), citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), and where “habeas is an
available and potentially efficacious remedy, it is clear beyond reasonable dispute that
mandamus will not appropriately lie.” Chatman–Bey v. Thornburgh, 864 F.2d 804, 806 (D.C.
Cir. 1988). See Williams v. Hill, 74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam) (“it is well-
settled that a prisoner seeking relief from his conviction or sentence may not bring [actions for
injunctive and declaratory relief]”) (citations omitted).
Moreover, mandamus relief “is not available to compel discretionary acts.” Cox v. Sec'y
of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990) (citing cases). It is established that the United
States Attorney General has absolute discretion in deciding whether to investigate claims for
possible criminal or civil prosecution, and such decisions generally are not subject to judicial
review. Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480-81 (D.C. Cir. 1995). See
Wightman-Cervantes v. Mueller, 750 F. Supp. 2d 76, 80 (D.D.C. 2010) (“[A]n agency’s decision
whether to prosecute, investigate, or enforce has been recognized as purely discretionary and not
subject to judicial review.”) (citing Block v. SEC, 50 F.3d 1078, 1081-82 (D.C. Cir. 1995)) (other
citation omitted).
Finally, “[n]othing in the cited regulations . . . demonstrates that [petitioner] has a clear
right to the requested relief.” Williams v. Reno, 910 F. Supp. 3, 5 (D.D.C. 1995) (citing 28
C.F.R. § 0.39a); see id. (citing cases “call[ing] into doubt plaintiff’s [purported] right to issuance
of a writ of mandamus requiring defendant to investigate plaintiff’s charges” of prosecutorial
misconduct by two former Assistant United States Attorneys). Even if the mandatory language
suggests otherwise, but for the valid reasons already stated, the Court would exercise its
discretion and deny mandamus relief.
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III. CONCLUSION
For the foregoing reasons, the Court concludes that petitioner has failed to demonstrate
any entitlement to a writ of mandamus and, thus, denies the petition. A separate order
accompanies this Memorandum Opinion.
________/s/____________
RUDOLPH CONTRERAS
United States District Judge
Date: November 25, 2015
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