BRESTLE v. DEPARTMENT OF JUSTICE et al

Filing 3

MEMORANDUM OPINION Signed by Judge Ellen S. Huvelle on 6/18/2012. (ls, )

FILED

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUN 2 0 2012
Gary Charles Brestle,
Petitioner,
v.

Department of Justice eta!.,
Respondents.

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Clerk, U.S. District & Bankruptcy

courts for the District of Columbia

Civil Action No.

MEMORANDUM OPINION
This matter, brought prose, is before the Court on its initial review of the petition for a
writ of mandamus and application for leave to proceed in forma pauperis ("IFP"). Upon review
of the petition, the Court finds that petitioner has failed to state a claim for such extraordinary
relief. It therefore will grant the IFP application and dismiss the petition 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, a federal prisoner in Jesup, Georgia, seeks an order to compel the Department
of Justice to investigate his claims of "preindictment" civil rights violations allegedly
"committed by agents of the Federal Bureau oflnvestigation ... operating under the control and
instruction" of an assistant United States attorney in West Palm Beach, Florida. Pet. at 2.
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

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discretionary acts." Cox v. Sec'y of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990) (citing cases). The
United States Attorney General has absolute discretion in deciding whether to investigate
petitioner's accusations. 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); see id. at 1480 ("A court may properly issue a writ of mandamus only
if the duty to be performed is ministerial and the obligation to act peremptory and clearly defined.
The law must not only authorize the demanded action, but require it .... ") (citations, internal
quotation marks and footnote omitted). A separate Order of dismissal accompanies this
Memorandum Opinion.

Date: June

__J_J:_, 2012

United States District Judge

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