Gagan v. Holder ( 2009 )

FILED
OCT 2 1 2009
UNITED STATES DISTRICT COURT Clerk, U.S. District and
FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts
Cary Gagan, )
)
Petitioner, )
)
v. ) Civil Action No. 09 1996
)
)
Eric Holder, )
)
Respondent. )
MEMORANDUM OPINION
This matter is before the Court on review of petitioner's pro se complaint and application
to proceed in forma pauperis. The application will be granted and the complaint will be
dismissed pursuant to 28 U.S.C. § 1915A (requiring dismissal of a prisoner's complaint upon a
determination that the complaint, among other grounds, fails to state a claim upon which relief
can be granted).
Petitioner is a Colorado state prisoner. Invoking the mandamus statute, 28 U.S.C.
§ 1361, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, petitioner seeks to
compel Attorney General Eric Holder to investigate his claims of organized crime in Colorado.
Compl. at 1. 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. The 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)
(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).
Similarly, the APA, "empowers a court only to compel an agency 'to perform a ministerial or
I
•
non-discretionary act,' or 'to take action upon a matter, without directing how it shall act.' "
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55,64 (2004) (quoting Attorney
General's Manual on the Administrative Procedure Act 108 (1947)).
The United States Attorney General has absolute discretion in deciding whether to
investigate claims for possible criminal or civil prosecution. As a general rule applicable to the
circumstances of this case, such decisions are not subject to judicial review. Shoshone-Bannock
Tribes v. Reno, 56 F.3d 1476, 1480-81 (D.C. Cir. 1995). The complaint therefore will be
dismissed for failure to state a claim upon which relief can be granted. A separate Order
accompanies this Memorandum Opinion.
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United States District Judge
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Date: October j!, 2009
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