Unpublished Disposition, 872 F.2d 426 (9th Cir. 1987)

MEMORANDUM^*** 

Jeffrey S. Balawajder ("Balawajder") appeals from the district court's dismissal of his petition for a writ of mandamus to compel the United States Attorney and the Federal Bureau of Investigation ("FBI") to investigate and prosecute crimes under 18 U.S.C. § 241 and 18 U.S.C. § 245. Balawajder contends on appeal that the substance of the order dismissing his mandamus petition is directed at a petition he had made in a separate habeas action before the district court. Thus, he contends, the district court dismissed the wrong action. We agree. However, we find that error harmless because Balawajder would not have been entitled to the relief he sought as a matter of law. Therefore, we affirm the dismissal of Balawajder's mandamus petition.

I. Balawajder's Mandamus Petition Was Dismissed Erroneously and the Error Was Not Corrected on Reconsideration

Balawajder filed his mandamus petition on November 17, 1986. Previously, he had filed a petition for a writ of habeas corpus with the district court. On December 30, 1986, Balawajder filed an emergency petition in his habeas case, seeking writs of prohibition, mandamus, and habeas corpus and a temporary restraining order to prevent his extradition and to provide access to the prison's law library.

On December 31, 1986, the district court issued an order which was filed in Balawajder's mandamus case. The order was entitled "ORDER DISMISSING PETITION FOR WRIT OF MANDAMUS AND DISMISSING EX PARTE MOTION FOR LEGAL ACCESS." The caption of the order indicated that the respondent was Sheriff Robert Winter. Winter was actually the respondent in Balawajder's habeas case. The substance of the order was directed at the claims raised in Balawajder's habeas case. The ground for dismissal was that the court did not have power to issue a writ of mandamus unless a federal action was involved. That ground is completely inapplicable to Balawajder's mandamus case, which seeks to compel federal officers to take federal action. Thus, it is clear that the district court's order of December 31 was directed at Balawajder's emergency petition and was filed erroneously in Balawajder's mandamus action.

On January 20, 1987, Balawajder filed a motion for reconsideration of the district court's order under Fed. R. Civ. P. 60(b), which pointed out the district court's error in filing the dismissal order. The district court denied the Rule 60(b) motion on March 6, 1987, in an order directed this time at the proper respondents. The order stated, however, that the only rights that Balawajder had enumerated in his mandamus petition concerned supplies of pens, paper, typewriters, and other items. The court stated that violations of these rights were better dealt with in a civil rights claim under 42 U.S.C. § 1983. Since these claims were already being dealt with in Balawajder's habeas case, which had been recharacterized as a Sec. 1983 action, the district court did not see any reason to force the United States Attorney to become involved in a case that was already being handled in the court through standard procedures.

In fact, Balawajder never enumerated in his mandamus petition the rights that he felt would form the basis for criminal actions under 18 U.S.C. §§ 241 and 245. In his petition, he only stated that he had information relating to violations of those sections and that he wanted the district court to compel the United States Attorney to prosecute for these violations. There is no other place in the record on Balawajder's mandamus petition where he discusses the nature of the civil rights violations of which he is complaining. We must conclude that the district court, rather than correcting its previous error, had continued to confuse Balawajder's mandamus case with his other action pending before the district court.

II. The Error was Harmless Because Balawajder Would Not Have Been Entitled to the Relief He Sought as a Matter of Law

A writ of mandamus will issue only when three prerequisites are met: the plaintiff must have a clear right to the relief sought, the defendant must have a clear duty to act, and no other adequate remedy must be available. Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390, 392 (9th Cir. 1982). Under the clear duty to act prerequisite, mandamus will issue only to compel ministerial functions, not discretionary functions. Id.; Finley v. Chandler, 377 F.2d 548 (9th Cir. 1967).

Balawajder sought mandamus to compel the United States Attorney and the FBI to investigate and prosecute civil rights violations. Although 28 U.S.C. § 547 states that the United States Attorney shall prosecute for all offenses against the United States, the decision whether to prosecute is left to the United States Attorney's discretion and generally is not reviewable by the courts. United States v. Hall, 559 F.2d 1160, 1163 (9th Cir. 1977); Spillman v. United States, 413 F.2d 527, 530 (9th Cir. 1969); see also United States v. Kysar, 459 F.2d 422 (10th Cir. 1972) (United States Attorney has discretion to prosecute or not to prosecute and that decision is not reviewable by any court); Powell v. Katzenbach, 359 F.2d 234, 234-35 (D.C. Cir. 1965) (mandamus will not lie to control exercise of United States Attorney General's discretion in initiating prosecution); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (courts are not to interfere with exercise of discretionary powers of United States Attorneys). Similarly, 28 U.S.C. § 535 states that the FBI may investigate violations of title 18, leaving the decision to investigate within the FBI's discretion. Mandamus will not issue to compel the United States Attorney and the FBI to perform these discretionary responsibilities.

Fed. R. Civ. P. 61 states " [t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." While we are somewhat hesitant to say that a district court order erroneously dismissing the wrong action is harmless error, it is entirely clear as a matter of law that Balawajder would not be entitled to a writ of mandamus in this case. Therefore, we find the error harmless here.

AFFIRMED.