Foreman v. Hunter

• Court: District Court, District of Columbia
• Decided: July 29, 2009
• Docket: Civil Action No. 2009-1416
• Status: Published

Opinion

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FILED UNITED STATES DISTRICT COURT JUL 29 2009 FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and Benkruptcy Courts DOUGLAS EMANUEL FOREMAN, ) ) Plaintiff, ) ) v. ) Civil Action No. 09 1416 ) BRENT W. HUNTER, et at., ) ) Defendants. )

MEMORANDUM OPINION

This matter is before the Court on plaintiff s application to proceed in forma pauperis and

his pro se complaint. The application will be granted, and the complaint will be dismissed.

Plaintiff brings this civil rights action under Bivens v. Six Unknown Named Agents of the

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against six detectives with the Chesapeake

Police Department, two Magistrate Judges with the Chesapeake Sheriffs Office, an agent with

the Bureau of Alcohol, Tobacco, Firearms and Explosives, an Assistant United States Attorney,

and the attorney appointed to represent him in criminal proceedings. See CompI. at 1-6. He

alleges that the detectives arrested him and searched a residence before obtaining a valid warrant

and that the detectives seized firearms belonging to a tenant of that residence. See id., PI.' s Aff.

at 1-4. He further alleges that, after the "state violations were 'nolle prosequi' by the state

prosecutor," the matter was "turned over to the [ATF] on violations of Federal statures [sic]"

based on a warrant that had been obtained illegally. Id. at 5. Plaintiff asserts that the arresting

officers testified falsely at trial before the United States District Court for the Eastern District of

Virginia, that defense counsel rendered ineffective assistance, and that defendants generally

violated plaintiffs Fourth, Fifth, Sixth and Fourteenth Amendment rights. See id. at 7-9; CompI. at 6. Plaintiff is serving a tenn of incarceration at the Federal Correctional Complex in

Petersburg, Virginia. See id. at 1; see also United States v. Foreman, 46 Fed. Appx. 215 (4th Cir.

2002) (per curiam) (affinning convictions on three counts offireann and drug offenses, one

count of possession of a fireann in furtherance of a drug trafficking crime, one count of witness

tampering, and one count of assault and battery in retaliation against a witness), cert. denied, 537

u.s. 1135 (2003). Plaintiff demands only one fonn of relief: "that a warrant be issued for the arrest of

defendant(s) Hunter, Hartig, Smith, Faddis, Bums, Evans[,] Minehart, Nesbit, Nunely, Tatem,

Metcalf, and Hancock." Compl. at 6. The federal courts have no authority to order arrests not

sought by the government. "In our criminal justice system, the Government retains broad

discretion as to whom to prosecute." Wayte v. United States, 470 U.S. 598,607 (1985) (citation

and internal quotation marks omitted). The power to conduct federal criminal litigation falls

"within the exclusive prerogative of the Attorney General." In re Persico, 522 F.2d 41, 54 (2d

Cir. 1977) (citation omitted); see United States v. Nixon, 418 U.S. 683, 693 (1974)

(acknowledging that the Executive Branch "has exclusive authority and absolute discretion to

decide whether to prosecute a case"); cf Powell v. Katzenbach, 359 F.2d 234, 234-35 (D.C. Cir.

1965) (per curiam), cert. denied, 384 U.S. 906 (1966) ("[T]he question of whether and when

prosecution is to be instituted is within the discretion of the Attorney General. Mandamus will

not lie to control the exercise of this discretion."). Accordingly, the Court will dismiss the

complaint for failure to state a claim upon which relief can be granted. An Order consistent with

this Memorandum Opinion is issued separately.

Um d States Dlstnct Judge DATE: