Keselica v. Federal Bureau of Investigation et al

Filing 5

ORDER dismissing 1 Motion for Writ of Mandamus; finding as moot 2 Motion for Leave to Proceed in forma pauperis; adopting 3 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 2/23/2016. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
FEDERAL BUREAU OF
)
INVESTIGATION, et al.,
)
)
Defendants.
)
)
___________________________________)
MICHAEL KESELICA,

C.A. No. 15-379 S

ORDER
WILLIAM E. SMITH, Chief Judge.
On October 5, 2015, Magistrate Judge Lincoln D. Almond issued
a Report and Recommendation (“R&R”) (ECF No. 3) on Plaintiff’s
Petition for Writ of Mandamus (“Petition”), recommending that it
be dismissed pursuant to the Court’s screening authority under 28
U.S.C. § 1915(e)(2).

Plaintiff timely objected to the R&R on

October 19, 2015 (“Objection”).

(ECF No. 4.)

For the reasons

that follow, the Court OVERRULES the Objection and ACCEPTS the R&R
pursuant to 28 U.S.C. § 636(b)(1).
I.

Background
Plaintiff’s Petition stems from an alleged failure by the FBI

to address Plaintiff’s complaints about blog posts concerning
Plaintiff and his purported business. Through a series of letters,
Plaintiff requested the Government investigate the blog’s alleged

crimes.

The U.S. Attorney’s Office, while acknowledging receipt

of Plaintiff’s letters, notified him that it did not plan to take
action against the blog.

(Ex. C to Pl.’s Pet., ECF No. 1-3.)

Plaintiff persisted, appearing on October 2, 2014 at the U.S.
Attorney’s Office in Providence, where he again presented the
alleged crimes committed against him.
1.)

(Pl.’s Pet. 3-4, ECF No.

The FBI declined to interview or take Plaintiff’s statement.
With the Government’s decision not to act, Plaintiff turned

to this Court for issuance of a writ of mandamus ordering the FBI
to initiate an investigation, interview him, and shut down the
blogs.

(ECF No. 1).

allegations,
Plaintiff’s

After carefully considering Plaintiff’s

Magistrate
Petition

Judge

pursuant

Almond
to

28

recommended
U.S.C.

§

dismissing

1915(e)(2)

as

frivolous and for failure to state any legally viable claims.
Magistrate Judge Almond’s recommendation is well founded.
II.

Application
Under 28 U.S.C. § 1361, the Court has jurisdiction over “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.”

“Mandamus

may

properly

issue

when

three

elements are present: (1) a clear right in the plaintiff to the
relief sought; (2) a plainly defined and preemptory duty on the
part of the defendant to do the act in question; and (3) no other
adequate remedy available.”

Cervoni v. Sec’y of HEW, 581 F.2d
2

1010,

1019

available

(1st
only

illegality.”

Id.

Cir.
under

1978).

But

exceptional

“[t]he

mandamus

circumstances

remedy
of

is

clear

And it is “well-settled that a writ of mandamus

is not available to compel discretionary acts.”

Cox v. Sec’y of

Labor, 739 F. Supp. 28, 30 (D.D.C. 1990).
Here, Plaintiff’s mandamus petition asks the Court to order
the FBI to investigate his complaint and take action on his behalf.
Problematic for Plaintiff’s petition, however, is that the FBI’s
decision to investigate or not to investigate alleged criminal
activity is a discretionary act and mandamus relief is generally
improper to compel such investigations.
Cervantes

v.

Mueller,

750

F.

Supp.

2d

See, e.g., Wightman76,

81

(D.D.C.

2010)

(collecting cases); Gant v. FBI, 992 F. Supp. 846, 848 (S.D. W.Va.
1998).

Magistrate Judge Almond, thus, did not err in recommending

denial of Plaintiff’s writ petition.
Further, as Magistrate Judge Almond pointed out, Plaintiff
has failed to show that there is no other adequate remedy available
to him to alleviate the alleged harm created by the blog.

In its

December 21, 2015 letter, the U.S. Attorney’s Office noted that
Plaintiff was free to seek a remedy regarding the allegedly harmful
blog material via a defamation lawsuit against the bloggers or the
FBI for what Plaintiff perceives as complicity in the defamatory
material.

(Ex. C to Pl.’s Pet., ECF No. 1-3.)

Consequently,

Plaintiff has failed to show he has no other adequate legal remedy
3

with

regard

to

the

allegedly

harmful

blogs,

providing

alternative basis for denying his mandamus petition.

an

See Cartier

v. Sec’y of State, 506 F.2d 191, 199 (D.C. Cir. 1974) (“[T]he
alternative remedies that might call for refusal to resort to writ
of mandamus encompass judicial remedies, as well as administrative
ones.” (internal citations omitted)).
Finally, though not considered in the R&R, Plaintiff asks
this Court to issue a writ compelling the FBI to return certain
documents to him.
the

mandamus

The Court denies this request.

remedy

circumstances.

is

only

available

As noted above,

under

exceptional

This is not such a circumstance.

III. Conclusion
For the foregoing reasons, Plaintiff’s Objection is OVERRULED
and the Report and Recommendation is ACCEPTED pursuant to 28 U.S.C.
§ 636(b)(1).

Plaintiff’s Petition is DISMISSED.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: February 23, 2016

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