### FrankE. Voth, Plaintiff,


### v. Eric Holder et al., UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Civil Action No.

Defendants. ) ) ) ) ) ) ) ) )


### MEMORANDUM OPINION 

# FILED MAY 1 92009 Clerk, U.S. District and Bankruptcy Courts


# 09 0924

Plaintiff, who is detained under authority ofthe state ofOregon in an Oregon detention facility, has filed a

### pro se civil rights complaint for injunctive relief, an application to proceed 

### in formapauperis, and other motions. The Court will grant the application, construe the complaint
as one for 

### mandamus, and dismiss the complaint. The gravamen ofplaintiffs complaint is that he has made multiple requests to employees in the United States Department ofJustice to initiate an investigation under the Americans with Disabilities Act of 1990 into the Board ofParole and Post-Prison Supervision, the Judge, and Prosecutor "regarding their denying plaintiffan attorney to represent him and appointing an investigation to assist plaintiffin preparing for trial," but that his requests have not produced results. CompI.**~~** 2, 3, 8. Plaintiffis ofthe viewthat the law requires action by the Justice Department and that the initiation ofan investigation or an enforcement action is not a discretionary function. 

### Id.**~** 7. As relief, plaintiffseeks a declaratoryjudgment confirming that the Justice Department is required to initiate the requested investigations, that the defendants'failure to act constitutes a violation ofthe plaintiffsrights, and an injunction compellingthe plaintiffs to act. Id. at 5-6. Because ofthe nature ofthe reliefrequested, the Court will construe this complaint as one inthe nature ofmandamus, brought under 28 U.S.C. § 1361, to compel an officer ofthe United States to perform non-discretionary duties owed to the plaintiff. The remedy ofmandamus "is a drastic one, to be invoked only in extraordinary circumstances." AlliedChemical Corp. v. Daiflon, Inc., 449 U.S. 33,34 (1980). Only "exceptional circumstances" warranting "ajudicial usurpation ofpower" willjustifyissuance ofthe writ. GulfstreamAerospace Corp. 

### v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (internal quotation marks omitted)); see also Doe v. Exxon Mobil Corp., 473 F.3d 345,353 (D.C. Cir. 2007) (stating that mandamus is "an extraordinary remedy reserved for really extraordinary cases") (internal quotation marks and citation omitted). Mandamus is available only if"(1) the plaintiffhas a clear rightto relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff." In re Medicare ReimbursementLitigation, 414 F.3d 7, 10 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)). Withrespect to the first two requirements, mandamus is available "onlywhere the duty to be performed is ministerial and the obligation to act peremptory and clearly defined. The lawmust not only authorize the demanded action, but require it; the duty mustbe clear and indisputable." Lozada Colon v. 

# us. Dep'tof State, 170 F.3d 191 (D.C. Cir. 1999) (internal quotation marks and citation omitted). The complaint does not, and onthese facts cannot, establish eitherthat plaintiffhas a clearright to the reliefrequested orthat the defendants have a clear duty to perform a ministerial, clearly defined, and peremptory act. It is beyond serious debate that the police power ofthe state
2that is vested in the executive branch to determine when and whether to initiate an investigation into lawviolations, and when and whether to prosecute law violations is a discretionary function. "Prosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples ofgovernmental discretion in enforcing the criminal law
...." 

### Gray v. 

### Bell, 712 F.2d 490,513 (D.C. Cir. 1983). "The federal courts have customarily refused to order prosecution ofaparticular individuals at the insistence ofprivate persons." 

### Nader v. 

### Saxbe, 497 F.2d 676, 679 n.18 (D.C. Cir. 1974) (collecting and discussing cases). Because the plaintiff seeks 

### mandamus relief, but cannot show that he is entitled to it, the complaint will be dismissed withoutprejudice for failure to state a claim upon which reliefmay be granted againstthese defendants. 28 U.S.C. 

### § 1915(e)(2)(B)(ii). A separate order accompanies this memorandum opinion.



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