Case: 1:21-cv-00598-DRC-KLL Doc #: 4 Filed: 10/07/21 Page: 1 of 6 PAGEID #: 120
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`Case No. 1:21-cv-598
`Cole, J.
`Litkovitz, M.J.
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`REPORT AND
`RECOMMENDATION
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`DAVID ANDREW BARDES,
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`Plaintiff,
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`vs.
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`UNITED STATES OF AMERICA,
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`Defendant.
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`Plaintiff, a resident of Cincinnati, Ohio, brings this pro se action against the United States
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`of America seeking a writ of mandamus. By separate Order, plaintiff has been granted leave to
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`proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a
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`sua sponte review to determine whether the petition, or any portion of it, should be dismissed
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`because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks
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`monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
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`In enacting the original in forma pauperis statute, Congress recognized that a “litigant
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`whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
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`economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
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`v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
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`To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
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`forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
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`also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the
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`plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke, 490
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`U.S. at 328-29; see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action
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`has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a
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`violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action
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`Case: 1:21-cv-00598-DRC-KLL Doc #: 4 Filed: 10/07/21 Page: 2 of 6 PAGEID #: 121
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`has no arguable factual basis when the allegations are delusional or rise to the level of the
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`irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The
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`Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing
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`a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting
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`Neitzke, 490 U.S. at 328).
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`Congress also has authorized the sua sponte dismissal of complaints that fail to state a
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`claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint filed by
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`a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal
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`pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
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`(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the
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`complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
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`that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
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`(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
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`claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
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`“A claim has facial plausibility when the plaintiff pleads factual content that allows the
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`court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
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`pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
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`factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
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`(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
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`“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
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`at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
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`2
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`Case: 1:21-cv-00598-DRC-KLL Doc #: 4 Filed: 10/07/21 Page: 3 of 6 PAGEID #: 122
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`formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
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`555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
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`enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
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`claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
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`Plaintiff’s pro se petition challenges the alleged failure to enforce the laws of the United
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`States against torture:
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`1. A dangerous situation has developed as a result of not enforcing our nation’s
`laws against murder and torture in regards to George W. BUSH, Dick Cheney, and
`a finite group of CIA officers. This problem has ballooned over the past twenty
`years to the point our nation’s sovereignty has been lost to foreign nations whom
`agree to keep secrets in return for power and control over the UNITED STATES
`just to protect George W. BUSH from our laws and the laws of the International
`Criminal Court (ICC). The ICC has opened their war crimes investigation into the
`use of George W. BUSH’s “Cold Cell Torture” or “Induced Hypothermia” to
`brutally torture to death multiple innocent victims.
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`2. Three Presidents and a dozen CEO’s have now been compromised protecting
`George W. BUSH from our laws. As I state below in the Facts of the Case, along
`with the website log evidence in Exhibit A, this pathetic mess that George W.
`BUSH has created, can only be remedied by court order directing the Executive
`Branch to enforce our well established laws against murder and torture. While
`prosecuting and executing a past President for repeated brutal murder is profound,
`the fact remains no one is above the law. As Justice Amy Coney Barrett recently
`said “it’s not my job to decide cases based on the outcome I want.” Please issue an
`order directing the Executive Branch to charge and prosecute George W. BUSH for
`murder and torture as our laws and Constitution require.
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`B. Facts of the Case
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`3. In 2006, I was falsely accused of not paying my child support and thrown in jail
`until the judge signed an order striking the falsely reported arrears. During the first
`three days I was locked inside a punishment holding cell called an “intensive
`management” cell. These cells are engineered to be made very cold, such the
`inmate shivers in the cold until they cooperate. I suffered from violent shivering
`and intense prolonged pain until I lost consciousness from hypothermia.
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`4. After leaving jail, I started doing research on these cold punishment holding
`cells, and discovered a dozen inmates whom died from hypothermia in these cells.
`Alarmed as you can imagine, I sought the assistance of lawyers. But each of the
`lawyers could not help me because every federal judge instantly dismissed torture
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`3
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`Case: 1:21-cv-00598-DRC-KLL Doc #: 4 Filed: 10/07/21 Page: 4 of 6 PAGEID #: 123
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`lawsuits to protect George W. BUSH, Dick Cheney, and the few CIA torture agents
`from being sued and executed for repeatedly torturing to death innocent victims in
`their war on terror. The federal courts cited torture as “too hot of a
`topic” to address at the time.
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`(Doc. 1-1 at PAGEID 4-5). The petition also includes allegations about the lawsuits plaintiff
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`filed challenging “hypothermic torture” and the actions of the courts addressing those lawsuits.
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`As relief, plaintiff requests that this Court “issue an order for the Executive Branch to charge and
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`prosecute said bad actors for murder and torture, forthwith, please, thank you.” (Id. at PAGEID
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`8).
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`Plaintiff’s petition is insufficient to state a claim for mandamus relief and should be
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`dismissed. Plaintiff’s petition for a writ of mandamus seeks to compel the investigation and
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`prosecution of former president George W. Bush for alleged criminal activity. Pursuant to 28
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`U.S.C. § 1361:
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`The district courts shall have original jurisdiction of any action in the nature of
`mandamus to compel an officer or employee of the United States or any agency
`thereof to perform a duty owed to the plaintiff.
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`28 U.S.C. § 1361. “The writ of mandamus is an extraordinary remedy and will issue only when
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`the petitioner has demonstrated that: (1) the petitioner has a clear right to relief; (2) the defendant
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`has a clear duty to act; and (3) there is no other adequate remedy available.” Leisure v. FBI of
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`Columbus, Ohio, 2 F. App’x 488, 490 (6th Cir. 2001) (citing Youghiogheny & Ohio Coal Co. v.
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`Milliken, 200 F.3d 942, 955 (6th Cir. 1999); In re NLO, Inc., 5 F.3d 154, 155-56 (6th Cir. 1993)).
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`Even if plaintiff were able to meet the first and third elements for mandamus relief, he is unable
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`to satisfy the second. The federal district courts lack the power to compel a federal criminal
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`investigation or prosecution at the request of a citizen plaintiff. See id.; see also Jarrett v.
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`Ashcroft, 24 F. App’x 503, 504 (6th Cir. 2001) (“mandamus cannot be used to compel the
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`Attorney General or the United States Attorney to conduct investigations or prosecute alleged
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`4
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`Case: 1:21-cv-00598-DRC-KLL Doc #: 4 Filed: 10/07/21 Page: 5 of 6 PAGEID #: 124
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`civil rights violators”) (citing Ryon v. O’Neill, 894 F.2d 199, 205 n.3 (6th Cir. 1990)); Bond v.
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`Thornburgh, 891 F.2d 289 (6th Cir. 1989) (“United States attorneys cannot be ordered to
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`prosecute, because the decision is within their discretion.”) (citing Peek v. Mitchell, 419 F.2d
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`575, 577 (6th Cir. 1970)). The petition fails to establish that the Executive Branch has a clear
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`duty to prosecute alleged criminal activity. Accordingly, the petition fails to state a claim for
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`mandamus relief and should be dismissed under 28 U.S.C. § 1915(e)(2)(B).
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`IT IS THEREFORE RECOMMENDED THAT:
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`1. Plaintiff’s petition for a writ of mandamus be DISMISSED with prejudice.
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`2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
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`appeal of any Order adopting this Report and Recommendation would not be taken in good faith
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`and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to
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`proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,
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`803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
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`(6th Cir. 1997).
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`______________________________
`Karen L. Litkovitz, Magistrate Judge
`United States District Court
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`5
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`Case: 1:21-cv-00598-DRC-KLL Doc #: 4 Filed: 10/07/21 Page: 6 of 6 PAGEID #: 125
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`DAVID ANDREW BARDES,
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`Plaintiff,
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`vs.
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`UNITED STATES OF AMERICA,
`Defendant.
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`Case No. 1:21-cv-598
`Cole, J.
`Litkovitz, M.J.
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`NOTICE
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`Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
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`the recommended disposition, a party may serve and file specific written objections to the
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`proposed findings and recommendations. This period may be extended further by the Court on
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`timely motion for an extension. Such objections shall specify the portions of the Report objected
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`to and shall be accompanied by a memorandum of law in support of the objections. If the Report
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`and Recommendation is based in whole or in part upon matters occurring on the record at an oral
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`hearing, the objecting party shall promptly arrange for the transcription of the record, or such
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`portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
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`assigned District Judge otherwise directs. A party may respond to another party’s objections
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`WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
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`accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
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`(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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