Berry v. Federal Bureau of Investigation

• Court: District Court, District of Columbia
• Decided: November 7, 2011
• Docket: Civil Action No. 2011-1949
• Status: Published

Opinion

FILED

UNITED sTATEs DISTRICT CoURT NOV ~ 7 2011

FOR THE DISTRICT OF COLUMBIA clerk u s g,~St,,-C, & 5 ' ' - ankrupt¢;y

Courts for the District of columbia

Irving J ames Berry, )

Petitioner, §

v. § Civil Action No. Federal Bureau of Investigation, §

Respondent. §

MEMORANDUM OPINION

This matter, brought pro se, 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 will dismiss the petition pursuant to 28 U.S.C. § 191 5A (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 Missouri prisoner, seeks an order to compel the F ederal Bureau of investigation ("FBI") to "investigate and interview," Pet. at l, "to enforce DNA testing" and "recover[] the true evidence in my case." ld. at 5. The claim appears to arise from an order issued by a Missouri state court on l\/lay 21, 2003, with regard to DNA testing of evidence supporting petitioner’s state conviction. See id. at 2-4 & Ex. B.

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." Irz 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 discretionary acts." C0x v. Sec§) ofLabor, 739 F. Supp. 28, 30 (D.D.C. 1990) (citing cases). The United States Attorney General has absolute discretion in deciding whether to investigate, via the FBI, claims for possible criminal or civil prosecution. As a general rule applicable to the circumstances of this case, such decisions are not subject to judicial review. Shoshorze-Barzrzock Tribes v. Reno, 56 F.3d 1476, 1480-81 (D.C. Cir, 1995); see ia'. 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).

Petitioner states no basis for issuing a writ of mandamus. A separate Order of dismissal

accompanies this Memorandum Opinion.

Dare: october 25 , 2011