HEARD v. UNITED STATES DEPARTMENT OF JUSTICE et al

Filing 8

ORDER dismissing 1 Motion for Writ of Mandamus; granting 7 Motion for Leave to Proceed in forma pauperis. Ordered by US DISTRICT JUDGE HUGH LAWSON on 6/30/2016. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

ROBERT HEARD,
Plaintiff,
Civil Action No. 7:16-CV-15 (HL)

v.
UNITED STATES ATTORNEY GENERAL,
et al.,
Respondents.

ORDER
Petitioner Robert Heard has filed a pro se Petition for Writ of Mandamus
and has also moved for leave to proceed in forma pauperis (“IFP”) (Doc. 7). After
conducting a preliminary review of the petition, the Court concludes that, even
when liberally construed, the pleading does not state a legitimate claim for
mandamus relief against any of the named Respondents. The Petition for Writ of
Mandamus is accordingly dismissed. Petitioner’s motion to proceed IFP is
granted only for the purposes of this dismissal.
I.

MOTION TO PROCEED IFP
The Court has reviewed Plaintiff’s Motion to proceed in forma pauperis

(“IFP”). (Doc. 7). Pursuant to 28 U.S.C. § 1915(a), a district court must determine
whether the statements contained in an IFP affidavit satisfy the requirement of
poverty. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).

Although a litigant does not have to prove he is “absolutely destitute” to qualify
under § 1915(a), he must show that “because of his poverty, [he] is unable to pay
for the court fees and costs, and to support and provide necessities for himself
and his dependents.” Id. (citing Adkins v. E.I. DuPont de Nemours & Co., 335
U.S. 331, 338-40 (1948)). After reviewing Plaintiff’s application to proceed IFP,
the Court finds that he is unable to pay the costs and fees associated with this
lawsuit and also manage the expenses of his household. Accordingly, Plaintiff’s
amended Motion for Leave to Proceed IFP (Doc. 7) is granted. This case shall
proceed without the prepayment of fees.
II.

PRELIMINARY REVIEW
Because Plaintiff is proceeding IFP, the Court is required to screen the

Complaint and to dismiss it, or any portion thereof, if it (1) is frivolous or
malicious; (2) fails to state a claim for which relief may be granted; or (3) seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). A claim is frivolous when it appears from the face of the complaint
that the factual allegations are “clearly baseless” and the legal theories
“indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).
The standard for failing to state a claim under § 1915(e)(2)(B)(ii) is the
same as that articulated in Federal Rule of Civil Procedure 12(b)(6). Thus, a
complaint is subject to dismissal for failure to state a claim when it does not

2

include sufficient factual matter, taken as true, to permit a “reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). However, since Plaintiff is proceeding pro se, his “pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore,
be liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(citations omitted).
Through this action, Petitioner asks this Court to issue a writ of mandamus
requiring the United States Attorney General, the Department of Justice, the
United States Congress, and the United States Senate to conduct an
investigation into alleged human rights and equal protection violations committed
against Petitioner. Petitioner states that he has alerted Respondents to
unspecified instances of identity theft, murder, attempted murder, conspiracy to
conceal felonious acts, and the filing of false statements by unnamed individuals
or entities. According to Petitioner, by failing to act on these claims, Respondents
have violated Petitioner’s right to access the courts and breached their duty to
protect Petitioner, resulting in physical harm and economic hardship to Petitioner.
Under the Mandamus Act, a district court may “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 is an extraordinary remedy which

3

should be utilized only in the clearest and most compelling of cases.” Cash v.
Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (quotation marks and alteration
omitted). “The party seeking mandamus has the burden of demonstrating that its
right to issuance of the writ is clear and indisputable.” In re BellSouth Corp., 334
F.3d 941, 953 (11th Cir. 2003) (quotation marks omitted). Mandamus relief is
only appropriate when “(1) the plaintiff has a clear right to the relief requested; (2)
the defendant has a clear duty to act; and (3) no other adequate remedy is
available.” Cash, 327 F.3d at 1258 (quotation marks and alteration omitted).
Plaintiff here has not satisfied his burden of showing that exceptional
circumstances warrant issuance of a writ much less that he has a clear right to
the particular relief he seeks, namely that the Court require Respondents to
initiate an investigation into the alleged misconduct of other unknown persons.
Furthermore, the “decision to investigate and prosecute crimes is entrusted to the
executive branch.” Thibeaux v. United States Attorney Gen., 275 Fed.App’x 889,
892 (11th Cir. 2008) (citing United States v. Smith, 231 F.3d 800, 807 (11th Cir.
2000); U.S. Const., art. II, § 3). A district court thus lacks authority to issue a writ
of mandamus requiring the initiation of investigations or prosecutions. Id. (citing
Otero v. United States Attorney Gen., 832 F.2d 141, 141-42 (11th Cir. 1987)
(“prosecutorial discretion may not be controlled by a writ of mandamus”)).
Petitioner’s pleading thus does not state a cognizable claim for mandamus relief.

4

III.

CONCLUSION
The Petition for Writ of Mandamus (Doc. 1) is accordingly dismissed.
SO ORDERED this 30th day of June, 2016.

s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
aks

5