Ari Bailey v. Bruce Brandler, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, GREENAWAY JR. and GREENBERG, Circuit Judges. Total Pages: 3. CLD-164

Case: 17-3645

Document: 003112950332

Page: 1

CLD-164

Date Filed: 06/07/2018

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3645
___________
ARI BAILEY,
Appellant
v.
BRUCE BRANDLER; G. MICHAEL THIEL; JOANNE HOFFMAN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-17-cv-02106)
District Judge: Honorable Richard P. Conaboy
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 29, 2018
Before: CHAGARES, GREENAWAY, Jr., and GREENBERG, Circuit Judges
(Opinion filed: June 7, 2018)
_________
OPINION *
_________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-3645

Document: 003112950332

Page: 2

Date Filed: 06/07/2018

Ari Bailey, a federal prisoner proceeding pro se, appeals an order of the United
States District Court for the Middle District of Pennsylvania dismissing his petition for a
writ of mandamus pursuant to 28 U.S.C. § 1361. For the reasons that follow, we will
affirm the judgment of the District Court.
Bailey seeks a writ of mandamus compelling Bruce Brandler, G. Michael Thiel,
and Joanne Hoffman of the United States Attorney’s Office for the Middle District of
Pennsylvania to investigate, indict, and prosecute sixteen prison employees who he
alleges obstructed and stole his mail in violation of 18 U.S.C. §§ 371, 1702, and 1708.
The District Court ruled that Bailey did not satisfy the standard for mandamus relief and
dismissed his petition. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is
plenary. Harmon Cove Condo. Ass’n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987).
The district courts have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff. 28 U.S.C. § 1361. Mandamus relief under
§ 1361 is available only where a defendant owes a plaintiff a clear nondiscretionary duty.
Heckler v. Ringer, 466 U.S. 602, 616 (1984). Mandamus relief is unavailable here
because the decision of a United States Attorney to prosecute a person is discretionary.
See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973)
(affirming dismissal of a complaint in mandamus to compel the United States Attorney to
investigate, arrest, and prosecute state officials for committing federal offenses).
2

Case: 17-3645

Document: 003112950332

Page: 3

Date Filed: 06/07/2018

Bailey contends that the defendants owe him a duty under 28 U.S.C. § 535(b), but
this provision requires that information “witnessed, discovered, or received in a
department or agency of the executive branch of the Government relating to violations of
Federal criminal law involving Government officers and employees” be reported to the
Attorney General. The statute does not require an investigation. See 28 U.S.C. § 535(a)
(providing the Attorney General “may investigate” such a violation). Section 535(c)(2),
also relied upon by Bailey, provides only that this section does not limit the primary
authority of the Postmaster General to investigate postal offenses. 1
Finally, Bailey suggests in a document attached to his notice of appeal that the
District Court erred by not affording him leave to amend his mandamus petition, but the
rule requiring that leave to amend be granted sua sponte applies in civil rights actions.
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.
2007).
Accordingly, because this appeal does not present a substantial question, we will
summarily affirm the judgment of the District Court.

1

Because Bailey has not shown that the defendants owe him a nondiscretionary duty, we
do not consider the District Court’s rationale in dismissing the petition.
3