ELLIOTT v. HOLDER

Filing 3

MEMORANDUM AND OPINION. Signed by Judge John D. Bates on 04/25/09. (mmh, )

FILED
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

APR 292009
NANCY MAYER WHlTTlNfiTOH ClERK
U.S. DISTRICT COURT'

CARMON ELLIOTT, Petitioner,
v.

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Civil Action No.

09 U7'72

ERIC HOLDER, U.S. ATTORNEY GENERAL, Respondent.

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MEMORANDUM OPINION This matter comes before the Court on review of petitioner's application to proceed in forma pauperis and his pro se petition for a writ of mandamus. The Court will grant the application and deny the petition. 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 ofDelaware 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. Holland, 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 seeks an Order compelling the Attorney General "to investigate and prosecute members of the Bush administration who have instigated or participated in any way in war

crimes" committed in violation of the United Nations' Charter Against Torture. Pet. at 5. He fails to demonstrate his clear right to relief, the Attorney General's clear duty to acknowledge receipt of correspondence, and the lack of any other remedy. Because the petition does not state a claim upon which mandamus relief may be granted, the petition will be denied.
An Order consistent with this Memorandum Opinion will be issued separately on this

same date.

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