UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STEVEN JERMAINE HARRIS SR.,
Plaintiff,
v. Civil Action No. 1:23-cv-00705 (UNA)
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the court on its initial review of plaintiff’s pro se pleading entitled
“judicial review according to Administrative Procedure Act,” ECF No. 2, which the court will
construe as a civil complaint. Upon review, and for the reasons explained below, the court will
dismiss the case without prejudice.
At the outset, the court notes that plaintiff’s application for leave to proceed in forma
pauperis, ECF No. 2, is not captioned for this court, in contravention of Federal Rule 10(a) and
D.C. Local Civil Rule 5.1(g), and will therefore be denied.
Plaintiff is an Oklahoma state prisoner who is a member of the Cherokee Nation. He sues
the United States Departments of Justice and Department of the Interior and alleges that an
Oklahoma state court was “without criminal jurisdiction” to prosecute, convict, and sentence him,
in violation of several federal laws and treaties. More specifically, because his alleged crimes
occurred on a reservation, he contends that they were subject only to federal prosecution. He seeks
to vacate his “illegal detention” by and through this court’s “review pursuant to the Administrative
Procedure Act (5 U.S.C. § 701 et seq) of [defendants’] failure to investigate and, if necessary, prosecute Oklahoma state officials for illegal detention of [plaintiff] and other[s] similarly situated
in state custody, and require said agencies to conduct and investigation as to whether Oklahoma
officials are violating federal law.” Plaintiff faces hurdles that he cannot overcome.
First, plaintiff should properly pursue these claims by filing a petition for writ of habeas
corpus. See 28 U.S.C. § 2254. Section 2254 authorizes federal courts to “entertain an application
for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254. Before obtaining review, a plaintiff must first exhaust his
available state remedies. See 28 U.S.C. § 2254(b)(1). Such a petition may proceed only “in the
district court for the district wherein such person is in custody or in the district court for the district
[where] the State court was held which convicted and sentenced [petitioner][,] and each of such
district courts shall have concurrent jurisdiction to entertain the application.” 28 U.S.C. § 2241(d).
And if the petition is a second or successive one, the plaintiff first must “move in the appropriate
court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Consequently, plaintiff must pursue relief in the United States District Court for
the District of Oklahoma or in the United States Court of Appeals for the Tenth Circuit.
Second, because plaintiff may pursue relief by and through a petition for writ of habeas
corpus, there can be no of action under the APA to challenge the legality of his conviction or
detention “because that Act is limited to review of agency action ‘for which there is no other
adequate remedy.’” Vetcher v. Sessions, 316 F. Supp. 3d 70, 77–78 (D.D.C. 2018) (holding that
plaintiff may not bring claim under APA when habeas remedy was available) (quoting 5 U.S.C. §
704; citing Stern v. Fed. Bureau of Prisons, 601 F. Supp. 2d 303, 305 (D.D.C. 2009)).
Third, and similarly, the court notes that plaintiff passingly references the federal mandamus act, 28 U.S.C. § 1361, but mandamus 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 of Delaware County Valley v. Regan, 709 F.2d
1521, 1533 (D.C. Cir. 1983) (en banc). As discussed, plaintiff has an available remedy in habeas.
See Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges to the validity of
any confinement or to particulars affecting its duration are the province of habeas corpus [.]”)
(citation omitted)); Morales v. Jones, 417 Fed. App’x 746, 749 (10th Cir. 2011) (“Absence of
jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief cognizable
under the due process clause.”). And where “habeas is an available and potentially efficacious
remedy, it is clear beyond reasonable dispute that mandamus will not appropriately lie.”
Chatman–Bey v. Thornburgh, 864 F.2d 804, 806 (D.C. Cir. 1988).
Fourth, plaintiff cites, without explanation, to the All Writs Act, 28 U.S.C. § 1651, “but
there is no debate that the only court with authority to grant the writ is the court that issued the
underlying judgment or order that will be affected by granting the writ.” Aka v. Holder, No. 09
1526, 2009 WL 2496712, at *1 (D.D.C. Aug. 13, 2009) (citing United States v. Salgado, 692 F.
Supp. 1265, 1269 n.3 (E.D. Wash. 1988) (“The authorities are unanimous that only the court
rendering judgment has the power to issue an extraordinary writ. Thus, § 1651 does not create
jurisdiction, but merely allows a court to exercise continuing jurisdiction in aid of, or in
supervising, its own judgments.”); Telecommunications Research and Action Center v. Federal
Communications Commission, 750 F.2d 70, 77 (D.C. Cir. 1984) (“The All Writs Act is not an
independent grant of jurisdiction to a court; it merely permits a court to issue writs in aid of
jurisdiction acquired to grant some other form of relief.”)). Thus, plaintiff has no recourse in this
District to circuitously challenge his prosecution, conviction, or incarceration, under the All Writs Act.
Fifth, plaintiff recites 25 U.S.C. § 2802, which provides the Secretary of the Interior
responsibility in “providing, or for assisting in the provision of, law enforcement services in Indian
country[,]” see id. § 2802(a), including a specific list of those law enforcement and public safety
responsibilities, see id. § 280(b) et seq. While these responsibilities certainly exist, there is no
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STEVEN JERMAINE HARRIS SR.,
Plaintiff,
v. Civil Action No. 1:23-cv-00705 (UNA)
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
This matter is before the court on its initial review of plaintiff’s pro se pleading entitled
“judicial review according to Administrative Procedure Act,” ECF No. 2, which the court will
construe as a civil complaint. Upon review, and for the reasons explained below, the court will
dismiss the case without prejudice.
At the outset, the court notes that plaintiff’s application for leave to proceed in forma
pauperis, ECF No. 2, is not captioned for this court, in contravention of Federal Rule 10(a) and
D.C. Local Civil Rule 5.1(g), and will therefore be denied.
Plaintiff is an Oklahoma state prisoner who is a member of the Cherokee Nation. He sues
the United States Departments of Justice and Department of the Interior and alleges that an
Oklahoma state court was “without criminal jurisdiction” to prosecute, convict, and sentence him,
in violation of several federal laws and treaties. More specifically, because his alleged crimes
occurred on a reservation, he contends that they were subject only to federal prosecution. He seeks
to vacate his “illegal detention” by and through this court’s “review pursuant to the Administrative
Procedure Act (5 U.S.C. § 701 et seq) of [defendants’] failure to investigate and, if necessary, prosecute Oklahoma state officials for illegal detention of [plaintiff] and other[s] similarly situated
in state custody, and require said agencies to conduct and investigation as to whether Oklahoma
officials are violating federal law.” Plaintiff faces hurdles that he cannot overcome.
First, plaintiff should properly pursue these claims by filing a petition for writ of habeas
corpus. See 28 U.S.C. § 2254. Section 2254 authorizes federal courts to “entertain an application
for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254. Before obtaining review, a plaintiff must first exhaust his
available state remedies. See 28 U.S.C. § 2254(b)(1). Such a petition may proceed only “in the
district court for the district wherein such person is in custody or in the district court for the district
[where] the State court was held which convicted and sentenced [petitioner][,] and each of such
district courts shall have concurrent jurisdiction to entertain the application.” 28 U.S.C. § 2241(d).
And if the petition is a second or successive one, the plaintiff first must “move in the appropriate
court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). Consequently, plaintiff must pursue relief in the United States District Court for
the District of Oklahoma or in the United States Court of Appeals for the Tenth Circuit.
Second, because plaintiff may pursue relief by and through a petition for writ of habeas
corpus, there can be no of action under the APA to challenge the legality of his conviction or
detention “because that Act is limited to review of agency action ‘for which there is no other
adequate remedy.’” Vetcher v. Sessions, 316 F. Supp. 3d 70, 77–78 (D.D.C. 2018) (holding that
plaintiff may not bring claim under APA when habeas remedy was available) (quoting 5 U.S.C. §
704; citing Stern v. Fed. Bureau of Prisons, 601 F. Supp. 2d 303, 305 (D.D.C. 2009)).
Third, and similarly, the court notes that plaintiff passingly references the federal mandamus act, 28 U.S.C. § 1361, but mandamus 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 of Delaware County Valley v. Regan, 709 F.2d
1521, 1533 (D.C. Cir. 1983) (en banc). As discussed, plaintiff has an available remedy in habeas.
See Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (“Challenges to the validity of
any confinement or to particulars affecting its duration are the province of habeas corpus [.]”)
(citation omitted)); Morales v. Jones, 417 Fed. App’x 746, 749 (10th Cir. 2011) (“Absence of
jurisdiction in the convicting court is indeed a basis for federal habeas corpus relief cognizable
under the due process clause.”). And where “habeas is an available and potentially efficacious
remedy, it is clear beyond reasonable dispute that mandamus will not appropriately lie.”
Chatman–Bey v. Thornburgh, 864 F.2d 804, 806 (D.C. Cir. 1988).
Fourth, plaintiff cites, without explanation, to the All Writs Act, 28 U.S.C. § 1651, “but
there is no debate that the only court with authority to grant the writ is the court that issued the
underlying judgment or order that will be affected by granting the writ.” Aka v. Holder, No. 09
1526, 2009 WL 2496712, at *1 (D.D.C. Aug. 13, 2009) (citing United States v. Salgado, 692 F.
Supp. 1265, 1269 n.3 (E.D. Wash. 1988) (“The authorities are unanimous that only the court
rendering judgment has the power to issue an extraordinary writ. Thus, § 1651 does not create
jurisdiction, but merely allows a court to exercise continuing jurisdiction in aid of, or in
supervising, its own judgments.”); Telecommunications Research and Action Center v. Federal
Communications Commission, 750 F.2d 70, 77 (D.C. Cir. 1984) (“The All Writs Act is not an
independent grant of jurisdiction to a court; it merely permits a court to issue writs in aid of
jurisdiction acquired to grant some other form of relief.”)). Thus, plaintiff has no recourse in this
District to circuitously challenge his prosecution, conviction, or incarceration, under the All Writs Act.
Fifth, plaintiff recites 25 U.S.C. § 2802, which provides the Secretary of the Interior
responsibility in “providing, or for assisting in the provision of, law enforcement services in Indian
country[,]” see id. § 2802(a), including a specific list of those law enforcement and public safety
responsibilities, see id. § 280(b) et seq. While these responsibilities certainly exist, there is no
indication that this statute provides an individual any private right of action, and moreover, this
provision does not, in any way, foreclose plaintiff’s ability to pursue his claims through a writ of
habeas corpus.
Sixth, plaintiff may not initiate criminal proceedings by filing a complaint with this court
because the court has no authority to compel the government to initiate a criminal investigation or
to prosecute a criminal case. See Shoshone–Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C.
Cir. 1995) (citations omitted); see also Cox v. Sec'y of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990)
(citing cases). The decision of whether or not to prosecute, and for what offense, rests with the
prosecution. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). “[I]n American
jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Sargeant
v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997); Powell v. Katzenbach, 359 F.2d 234, 234–35
(D.C. Cir. 1965) (per curiam), cert. denied, 384 U.S. 906 (1966); Sattler v. Johnson, 857 F.2d 224,
227 (4th Cir. 1988); Sibley v. Obama, 866 F. Supp. 2d 17, 22 (D.D.C. 2012). Nor may plaintiff
compel a criminal investigation by any law enforcement agency by filing a complaint. See Otero
v. U.S. Attorney General, 832 F.2d 141, 141–42 (11th Cir. 1987) (per curiam); see also Jafree v.
Barber, 689 F.2d 640, 643 (7th Cir. 1982). “[A]n agency's decision not to prosecute or enforce,
whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).
Finally, to the extent that plaintiff attempts to bring this action on behalf of those “similarly
situated,” he may not do so, because a pro se litigant can represent only himself in federal court.
See 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their
own cases personally or by counsel . . . ”); Georgiades v. Martin–Trigona, 729 F.2d 831, 834 (D.C.
Cir. 1984) (individual “not a member of the bar of any court . . . may appear pro se but is not
qualified to appear in [federal] court as counsel for others”) (citation and footnote omitted); see
also U.S. ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 16 (D.D.C. 2003),
aff'd sub nom. Rockefeller ex rel. U.S. v. Washington TRU Solutions LLC, No. 03–7120, 2004 WL
180264 (D.C. Cir. Jan. 21, 2004) (“[A] class member cannot represent the class without counsel,
because a class action suit affects the rights of the other members of the class”) (citing Oxendine
v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)).
For all of these reasons, this case is dismissed without prejudice. A separate order
accompanies this memorandum opinion.
Date: April 17, 2023
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge