Fuller v. Unknown Officials From the Justice Department Crime Division ( 2010 )


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  •                                                                                             FILED
    MAR 1 6 2010
    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA                               NANCY MAYER WHIITlNGTON, CLERK
    U.S. DISTRICT COURT
    GEORGE V. FULLER,                            )
    )
    Petitioner,    )
    )
    v.                                    )
    )
    Civil Action No.
    10 {)438
    UNKNOWN OFFICIALS FROM                       )
    THE JUSTICE DEPARTMENT,                      )
    )
    Respondents. )
    MEMORANDUM OPINION
    This matter comes before the Court on review of petitioner's application to proceed in
    forma pauperis, motion to use a post office box as his mailing address, and his pro se
    complaint, which is construed as a petition for a writ of mandamus.
    Mandamus relief is proper 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." Council of and for the Blind of Delaware County Valley v. Regan, 709 F .2d 1521,
    1533 (D.C. Cir. 1983) (en banc). The party seeking mandamus has the "burden of showing
    that [his] right to issuance of the writ is 'clear and indisputable. '" Gulfstream Aerospace
    Corp. v. Mayacamas Corp., 
    485 U.S. 271
    , 289 (1988) (citing Bankers Life & Cas. Co. v.
    Hoiland, 
    346 U.S. 379
    , 384 (1953». Where the action petitioner seeks to compel is
    discretionary, he has no clear right to relief and mandamus therefore is not an appropriate
    remedy. See, e.g., Heckler v. Ringer, 
    466 U.S. 602
    , 616 (1984). Petitioner does not establish
    any of these elements.
    Petitioner alleges that three attorneys representing Harris County, Texas in a civil case
    before the United States District Court for the Southern District of Texas allowed their
    witnesses to commit perjury and to submit false declarations. See Pet. at 3. Petitioner
    complained to the Federal Bureau of Investigation and to the United States Department of
    Justice, 
    id., and he
    alleges that the government's failure to act on these complaints violated
    his "civil and constitutional rights to equal protection under 18 USC. "lId. at 4. Among
    other relief, petitioner demands a writ of mandamus directing defendants "to perform a legal
    duty owed" to him. 
    Id. at 9.
    Insofar as petitioner demands an order directing defendants to prosecute particular
    individuals, the Court has no such authority. Only the Attorney General determines whether
    or when to prosecute an individual or to investigate a particular matter. See United States v.
    Nixon, 
    418 U.S. 683
    , 693 (1974) (acknowledging that the Executive Branch "has exclusive
    authority and absolute discretion to decide whether to prosecute a case"); Powell v.
    Katzenbach, 
    359 F.2d 234
    , 234-35 (D.C. Cir. 1965) (per curiam) ("[T]he question of whether
    and when prosecution is to be instituted is within the discretion of the Attorney General.
    Mandamus will not lie to control the exercise of this discretion. "), cert. denied, 
    384 U.S. 906
    (1966); 28 U.S.C. § 547(1) (stating that "each United States Attorney, within his district, shall
    ... prosecute for all offenses against the United States"). Petitioner neither demonstrates his
    clear right to relief nor articulates the legal duty defendants owe him, nor shows that no other
    remedy is available to him.
    Moreover, petitioner cannot bring a civil action on the basis of defendants' alleged
    The Court presumes that" 18 USC" is a reference to Title 18 of the United
    States Code pertaining to crimes and criminal procedure.
    violation of criminal statutes. See Abou-Hussein v. Gates, 
    657 F. Supp. 2d 77
    , 81 (D.D.C.
    2009) ("Moreover, plaintiff's claims of fraud or false statements under 18 U.S.C. § 1001 and
    conspiracy under 
    18 U.S. C
    . § 241 are also barred because these criminal statutes do not
    expressly create a private right of action upon which plaintiff may sue defendants.") (citations
    omitted); Isbell v. Stewart & Stevenson, Ltd., 9 F. Supp. 2d 731,734 (S.D. Tex. 1998)
    (finding that "here is no basis under [18 U.S.C. §§ 1621 and 1623] for any private right of
    action"); see also Ebbing v. Butler County, Ohio, No. 1:09-CV-00039, 
    2010 WL 596470
    , at
    *5 (S.D. Ohio Feb. 16, 2010) (affirming magistrate judge's recommendation to deny a motion
    to amend the complaint where plaintiff sought to add claims that defendant violated 18 U.S.C.
    §§ 241-242, 1621, 1623, and 2235, among others, because there was no private right of action
    under these criminal statutes).
    The Court will deny the petition and dismiss this action. An Order consistent with this
    Memorandum Opinion will be issued separately on this same date.
    United States District Judge
    

Document Info

Docket Number: Civil Action No. 2010-0438

Judges: Judge Richard W. Roberts

Filed Date: 3/16/2010

Precedential Status: Precedential

Modified Date: 10/30/2014