Elliott v. Holder

Opinion

FILED UNITED STATES DISTRICT COURT APR 292009 FOR THE DISTRICT OF COLUMBIA NANCY MAYER WHlTTlNfiTOH ClERK U.S. DISTRICT COURT'

CARMON ELLIOTT, ) ) Petitioner, ) ) v. ) Civil Action No. 09 U7'72 ) ERIC HOLDER, U.S. ATTORNEY GENERAL, ) ) Respondent. )

MEMORANDUM OPINION

This matter comes before the Court on review of petitioner's application to proceed in

forma pauperis and his pro se petition for a writ of mandamus. The Court will grant the

application and deny the petition.

Mandamus relief is proper only if"(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff."

Council of and for the Blind ofDelaware County Valley v. Regan, 709 F.2d 1521,1533 (D.C.

Cir. 1983) (en banc). The party seeking mandamus has the "burden of showing that [his] right to

issuance of the writ is 'clear and indisputable.'" Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271, 289 (1988) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384

(1953)). Where the action petitioner seeks to compel is discretionary, he has no clear right to

relief and mandamus therefore is not an appropriate remedy. See, e.g., Heckler v. Ringer, 466

U.S. 602, 616 (1984). Petitioner does not establish any of these elements.

Petitioner seeks an Order compelling the Attorney General "to investigate and prosecute

members of the Bush administration who have instigated or participated in any way in war crimes" committed in violation of the United Nations' Charter Against Torture. Pet. at 5. He

fails to demonstrate his clear right to relief, the Attorney General's clear duty to acknowledge

receipt of correspondence, and the lack of any other remedy. Because the petition does not state

a claim upon which mandamus relief may be granted, the petition will be denied.

An Order consistent with this Memorandum Opinion will be issued separately on this

same date.

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