2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-19-2009

Michael Piskanin v. Meuller

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2836

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Recommended Citation

"Michael Piskanin v. Meuller" (2009). 2009 Decisions. Paper 424.

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DLD-327 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2836

___________

MICHAEL JOHN PISKANIN, JR.,

 Appellant

v.

JOHN DOE AS SPECIAL AGENT IN CHARGE PHILADELPHIA DISTRICT

OFFICE OF FEDERAL BUREAU OF INVESTIGATION; MEULLER, DIRECTOR,

INDIVIDUAL AND AS THE DIRECTOR OFFICE OF THE FEDERAL BUREAU OF

INVESTIGATION

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 09-cv-02553)

District Judge: Honorable Michael M. Baylson

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 24, 2009

Before: BARRY, AMBRO and SMITH, Circuit Judges

(Opinion filed: October 19, 2009)

_________

OPINION

_________

PER CURIAM.

Michael J. Piskanin, Jr., a Pennsylvania state inmate, commenced this pro se action

in the United States District Court for the Eastern District of Pennsylvania by filing a
 Insofar as Piskanin moves for permission to submit his “Motion to Allow Informal 1

Brief” as a response to possible summary action, that motion is granted. 

2

pleading titled “Complaint Seeking to Compel Federal Officers to Perform Duty to

Protect.” Piskanin claimed that he is a “former operative” for the Federal Bureau of

Investigation, and that he is entitled to FBI “protection” from numerous public officials

who allegedly have engaged in retaliatory acts, including the criminal prosecution of

Piskanin. Piskanin asked that the District Court direct the named defendants to transfer

him to federal custody, conduct a full investigation, and “remove” to federal court “the

criminal prosecutions at CR 0002072 and 2004.” Piskanin purported to seek this relief

under the All Writs Act, 28 U.S.C. § 1651, and 28 U.S.C. §§ 1442(a)(1) and 1446. 

The District Court granted Piskanin leave to proceed in forma pauperis and

dismissed his complaint as legally frivolous. Viewing the complaint as seeking a writ of

mandamus under 28 U.S.C. § 1361, the District Court held that Piskanin failed to show

that he exhausted all other avenues of relief or that his right to issuance of the writ is clear

and indisputable. The District Court declined to intervene in the pending criminal actions

given the absence of any showing of circumstances warranting such relief.

Piskanin timely filed this appeal. We have appellate jurisdiction under 28 U.S.C.

§ 1291. Our Clerk advised the parties that this Court would consider summary action

under Third Circuit Internal Operating Procedure Chapter 10.6. Piskanin has filed

responses titled “Statement of Issues on Appeal with Informal Brief” and “Motion to

Allow Informal Brief.” After a careful review of these submissions and the record, we 1
3

will summarily affirm.

The District Court was correct that Piskanin is not entitled to mandamus relief. A

district court has jurisdiction under 28 U.S.C. § 1361 to issue a writ “to compel an officer

or employee of the United States ... to perform a duty owed to the plaintiff,” but the writ

may issue only for “a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616

(1984). Piskanin’s alleged status as a “former operative” does not support a claim that he

is owed a nondiscretionary duty from the FBI either to “protection” from or an

investigation of the allegedly retaliatory acts taken against him. While 28 U.S.C. § 535

provides that the FBI “may investigate any violations of Federal criminal law involving

Government officers and employees,” the decision to initiate an investigation is within the

FBI’s discretion. See, e.g., Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982).

Piskanin’s suggestion that the District Court erred in failing to acknowledge

“removal” of the state criminal prosecutions under 28 U.S.C. § 1442(a)(1) is without

merit. “To establish removal jurisdiction under section 1442(a)(1), a defendant ... must

establish that (1) it is a ‘person’ within the meaning of the statute; (2) the plaintiff’s

claims are based upon the defendant’s conduct ‘acting under’ a federal office; (3) it raises

a colorable federal defense; and (4) there is a causal nexus between the claims and the

conduct performed under color of a federal office.” Feidt v. Owens Corning Fiberglass

Corp., 153 F.3d 124, 127 (3d Cir. 1998). Piskanin’s allegation that he was subjected to

retaliation for his alleged reports to federal law enforcement about those who have
 To the extent that Piskanin also sought removal of his criminal prosecution under 28 2

U.S.C. § 1446, we note that the criminal matter to which he apparently refers, Lehigh County

Court of Common Pleas No. 39-CR-0002027-2004, is no longer pending, and the District Court

clearly has no authority to review the state courts’ decision. 

4

 allegedly conspired against him cannot support § 1442(a)(1) removal.2

We reject Piskanin’s contention that the District Court erred procedurally in

dismissing his action prior to service. The District Court acted in accordance with its

authority under 28 U.S.C. § 1915A, which requires a district court, “before docketing,” to

review a prisoner civil action seeking redress from government employees, and to dismiss

the case if it is frivolous. See 28 U.S.C. § 1915A(a)-(b).

Because this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, we

will summarily affirm the District Court’s judgment.