Merton Bond, Plaintiff-appellant, v. U.S. Attorney General Thornburgh, U.S. Department Ofjustice, Defendants-appellees, 891 F.2d 289 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 289 (6th Cir. 1989)

Dec. 12, 1989


Before BOYCE F. MARTIN, Jr., NATHANIEL R. JONES and RALPH B. GUY, Jr., Circuit Judges.


ORDER

The defendants move to dismiss the appeal from the district court's order dismissing this Bivens action. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). Plaintiff Bond has filed a response to the motion. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The defendants' motion to dismiss does not argue that Bond's notice of appeal was untimely or that Bond appealed from a nonappealable order. Therefore, the motion to dismiss is actually a motion to affirm. Motions to affirm are not allowed under the rules of this court. Rule 8(a) (3), Rules of the Sixth Circuit. Therefore, we will deny the motion to dismiss.

The defendant is a prisoner at the Luther Luckett Correctional Complex in LaGrange, Kentucky. The defendants are the United States Attorney General and the United States Department of Justice. In his complaint, Bond alleged that he sent complaints concerning the violation of his constitutional rights to the defendants, who failed to respond to the complaints. He requested $1,000,000 in damages.

The district court dismissed the case sua sponte as frivolous under 28 U.S.C. § 1915(d) (1982). A case is frivolous where it lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Examples of cases lacking an arguable basis in law are cases involving an immunity defense or cases failing to raise a liberty or property interest. 109 S. Ct. at 1833.

Here Bond's case lacks a protectable interest. United States attorneys cannot be ordered to prosecute, because the decision is within their discretion. Peek v. Mitchell, 419 F.2d 575, 577 (6th Cir. 1970). Therefore, Bond cannot state a cause of action against either the Attorney General or the Department of Justice. The district court's order can be affirmed on this basis.

The motion to dismiss is denied. The order of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.