Kates v. Micieli et al

Filing 19

ORDER denying 18 Motion for investigation Signed by Magistrate Judge C Michael Hill on 1/4/10. (crt,Davis, C)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA D A V I D E. KATES V S. C I V I L ACTION NO. 2:09-1447 S E C T IO N P J U D G E MELANÇON L T . MICIELI, ET AL. ORDER B e f o re the court is a letter received from plaintiff dated December 21, 2009, which th e Clerk has construed as a Motion for Investigation. [rec. doc. 18]. By this Motion, p la in tif f complains that he has been the subject of retaliation as a result of the filing of the in sta n t litigation. More specifically, plaintiff complains that he was placed in restraints f ro m November 18, 2009 to December 11, 2009, that Lt. Micieli destroyed his u n id e n tifie d personal property, taunted him and acted unprofessionally, and denied him lu n c h and dinner on December 20, 2009. Plaintiff states that he has filed new complaints w ith prison officials regarding these actions. However, he believes that his "life and well b e in g " are in danger. Thus, plaintiff requests that this court refer his complaints to the F B I for investigation. In his original Complaint, plaintiff complains that in July, 2009, Officer Mandalfo " sm a sh [ e d ]" plaintiff's wrist and finger in the steel food trap, called him a terrorist and th re a te n e d to poison his food, in violation of his Eighth Amendment rights, that L ie u te n a n t Micieli placed him in ambulatory restraints for five hours, and four point bed M A G I S T R A T E JUDGE HILL

2 re stra in ts for thirteen hours, that he could not pray five times that day as required by his M u slim faith, in violation of his Eighth and First Amendment rights, and that Captain K iz z ia h violated plaintiff's First Amendment right to petition the courts, when plaintiff w a s restrained. The accompanying Motion for TRO filed contemporaneously with the C o m p la in t reveals that plaintiff was placed in restraints as a result of plaintiff's having sp it on Lt. Micieli, for which assault charges are pending against plaintiff. This court's d e n ia l of plaintiff's Motion for TRO is currently pending on appeal in the United States F if th Circuit Court of Appeal. [rec. doc. 10]. The actions complained of in the instant Motion occurred in the past and were of sh o rt and limited duration. While plaintiff has expressed his belief that his life is in d a n g e r, there is no competent evidence in the record before this court evincing that a f a ilu re to immediately act will result in any life threatening injury. To the contrary, p lain tiff admits that his new complaints are currently pending before the BOP, and there is no indication that the BOP will be unable to adequately address these complaints w ith o u t judicial intervention. Further, this court cannot, and will not, order law investigatory agencies, such as th e FBI, to conduct a investigation of plaintiff's complaints. The authority to do so lies w ith in the discretion of the executive, rather than the judicial branch. See Heckler v. C h a n e y , 470 U.S. 821, 832, 105 S.Ct. 1649, 1656 (1985); Inslaw, Inc. v. Thornburgh, 753 F .S u p p . 1, 4-6 (D.D.C.1990); United States v. Rockwell, 924 F.2d 928, 937-38 (9th Cir.

3 1 9 9 1 ) (Reinhardt, concurring); United States v. Hunter, 13 F. Supp.2d 586, 591 (D. V erm o n t 1998); May v. Kennard Independent School District, 1996 WL 768039, *4 (E.D. T e x . 1996) (declining to order the commencement of a federal investigation noting the " e x tre m e ly strong presumption" against judicial intrusion into executive functions, based o n the separation of powers principle which acts as a restraint on the power of federal c o u rts ). It is not the province of this court to inject itself into traditionally executive areas o f decision making, as that would implicate the constitutional principle of separation of p o w e rs . May and Inslaw, Inc., supra. Should plaintiff wish to file criminal or civil c o m p la in t, he should contact the appropriate department, office or agency.1 McCloud v. C ra ig , 2009 WL 251 5609, *2 (E.D. La. 2009) ("Federal courts are not investigative or p ro s e c u to ria l agencies. Individuals seeking the criminal investigation or prosecution of a lle g e d wrongdoers should request the intervention of the appropriate law enforcement au tho rities, not the federal courts."); Bland v. Terrebonne Parish Criminal Justice C o m p le x , 2009 WL 3486449, *3 (E.D. La. 2009) (same); Hymel v. Champagne, 2007 WL 1 0 3 0 2 0 7 , *2 (E.D. La. 2007) (denying plaintiff's request that the court order an in v e stig a tio n of a correctional center stating "this Court has no authority to issue such an o rd e r and plaintiff has no constitutional right to such an order. Moreover, to the extent th a t plaintiff is alleging that a criminal investigation should be instituted, such

P l a in tiff may pursue his request with the United States Department of Justice, the Federal Bureau of I n v e s tig a tio n s , the United States Attorney's Office, the Parish District Attorney's Office or the various state and local la w enforcement agencies.

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4 in v e s tig a tio n s are solely within the purview of law enforcement authorities."). For the above reasons, plaintiff's Motion for Investigation [rec. doc. 18] is D E N IE D . T H U S DONE AND SIGNED in Chambers at Lafayette, Louisiana, January 4, 2010.