NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-2829 __________

HOWARD P. BROBST, Appellant

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA; DIRECTOR FEDERAL BUREAU OF INVESTIGATION ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-18-cv-00505) District Judge: Honorable Robert D. Mariani ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 1, 2020 Before: SHWARTZ, RESTREPO, and NYGAARD, Circuit Judges

(Opinion filed: April 7, 2020) ___________

OPINION* ___________

PER CURIAM

Howard P. Brobst appeals from the order of the District Court dismissing his

complaint. We will affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 I.

Brobst filed a previous complaint against the United States seeking damages and

other relief on the basis of fraud allegedly committed during his and his company’s

Chapter 11 bankruptcies in the 1990s. The District Court dismissed his complaint, and

we affirmed. See Brobst v. United States,

(3d Cir. 2016).

About a year and a half later, Brobst filed pro se the complaint at issue here. He

styled it as a petition for a writ of mandamus, and he named as defendants the Attorney

General of the United States, the United States Department of Justice, and the Director of

the Federal Bureau of Investigation. Brobst repeated his allegations of bankruptcy fraud,

which he claimed constituted crimes as defined in

and 242. He also

claimed that he reported these alleged crimes to defendants but that defendants have not

investigated them or prosecuted those allegedly responsible. The only relief he sought

was an order directing them to do so.

A Magistrate Judge granted Brobst leave to proceed in form pauperis, screened his

complaint pursuant to

(e)(2)(B), and concluded that it was subject to

dismissal for failure to state a claim because Brobst had no right to compel a criminal

investigation or prosecution. The Magistrate Judge also gave Brobst leave to amend his

complaint. Brobst did not amend his complaint and instead responded with three motions

for appointment of counsel, each of which the Magistrate Judge denied. The Magistrate

Judge ultimately issued a report recommending that the District Court dismiss Brobst’s

complaint for failure to state a claim under § 1915(e)(2)(B)(ii) for the reasons the

Magistrate Judge previously explained. Brobst did not object, and the District Court 2 adopted the Magistrate Judge’s recommendation and dismissed Brobst’s complaint.

Brobst appeals.1

II.

We will affirm substantially for the reasons explained by the Magistrate Judge.

The only relief that Brobst sought was an order in the nature of a writ of mandamus

requiring defendants to investigate his allegations of bankruptcy fraud and to criminally

prosecute those allegedly responsible. Mandamus is an extraordinary remedy that is

available only when, inter alia, the defendant owes the plaintiff “a clear nondiscretionary

duty.” Heckler v. Ringer,

(1984).

As the Magistrate Judge explained, mandamus is not available here because

defendants do not owe Brobst a clear nondiscretionary duty to investigate or prosecute

these alleged crimes. See, e.g., Jafree v. Barber,

(7th Cir. 1982) (per

curiam) (affirming dismissal of complaint styled as a mandamus petition seeking an order

directing the FBI to investigate crimes because “[i]nitiation of a criminal investigation by

the F.B.I. is clearly a discretionary act”); Inmates of Attica Corr. Facility v. Rockefeller,

1 We have jurisdiction under

. We generally review de novo the dismissal of a complaint for failure to state a claim. See Fantone v. Latini,

(3d Cir. 2015); Allah v. Seiverling,

(3d Cir. 2000). We do so in this case even though Brobst did not object to the Magistrate Judge’s recommendation because the Magistrate Judge’s report (ECF No. 14) did not warn Brobst that his failure to object could subject him to plain-error review. See EEOC v. City of Long Branch,

(3d Cir. 2017) (citing, inter alia, Leyva v. Williams,

, 363- 64 (3d Cir. 2007)). In addition to dismissing Brobst’s complaint for failure to state a claim, the District Court opined that the complaint also was subject to dismissal for failure to prosecute because Brobst did not file an amended complaint as ordered by the Magistrate Judge. We need not address that point because the District Court properly dismissed Brobst’s complaint for failure to state a claim as discussed herein. 3

(2d Cir. 1973) (affirming dismissal of complaint seeking mandamus

relief to compel United States Attorney to prosecute alleged violations of

and 242 and noting that federal courts have “uniformly” rejected challenges to

“discretionary decisions of federal prosecuting authorities not to prosecute persons

regarding whom a complaint of criminal conduct is made”).

We briefly address two other points. First, Brobst challenges the Magistrate

Judge’s denial of his motions for appointment of counsel. Brobst did not seek District

Court review of those rulings in the first instance, so we ordinarily might deem this

challenge waived. See United Steelworkers of Am. v. N.J. Zinc. Co.,

,

1007-08 (3d Cir. 1987). In this case, however, the Magistrate Judge did not advise

Brobst (who was proceeding pro se) of his ability to seek District Court review. See

Siers v. Morrash,

, 116 & n.11 (3d Cir. 1983). Brobst’s third motion for

appointment of counsel also could be construed at least in part as an appeal to the District

Court.2 Under these circumstances, we will review the Magistrate Judge’s denial of

Brobst’s motions for appointment of counsel. Having done so, however, we discern no

reversible error because Brobst’s complaint did not present any arguably meritorious

issue as discussed above. See Tabron v. Grace,

(3d Cir. 1993).

Second, in his notice of appeal and opening brief, Brobst asserts without

elaboration that on “October 7, 2018 Appellant suffered a stroke and was unable to

2 When the Magistrate Judge denied Brobst’s first motion for counsel, he immediately responded with a second and, when the Magistrate Judge denied that motion too, Brobst immediately responded with a third. Brobst titled his third motion in part as a “response to court order denying second motion to appoint counsel.” (ECF No. 12.) 4 respond to additional court notices.” Brobst does not appear to have brought this

unfortunate circumstance to the District Court’s attention. He also does not argue that

this circumstance prejudiced his ability to proceed with this action or entitles him to any

relief on appeal, and we conclude that it does not.

The Magistrate Judge initially gave Brobst until August 23, 2018, to amend his

complaint but then sua sponte extended the deadline until September 6, 2018. Brobst

alleges that he suffered a stroke a month after that. The Magistrate Judge then did not

issue his report until March 14, 2019. Brobst provides no details regarding his health at

that time and does not argue that he was unable to file objections. Even if he was,

however, he now has filed both an opening brief and a reply brief on appeal and we have

reviewed the dismissal of his complaint de novo as noted above. Thus, Brobst’s assertion

in this regard does not state any basis for relief on appeal.

III.

For these reasons, we will affirm the judgment of the District Court.

5