Keelen v. Fed Bur of Investg

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30542
Conference Calendar
KARSTON KEELEN,
Petitioner-Appellant,
versus
FEDERAL BUREAU OF INVESTIGATION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CV-1122-C
--------------------
Before KING, Chief Judge, and JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Karston Keelen, Louisiana state prisoner # 125690, moves for
leave to proceed in forma pauperis to appeal the district court’s
dismissal of his petition for mandamus relief. The district
court dismissed the petition as frivolous and for failure to
state a claim on which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and (ii).
Keelen’s motion is a challenge to the district court’s
certification that his appeal is not taken in good faith. Baugh

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No. 03-30542
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v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Keelen argues that
the Federal Bureau of Investigation (FBI) has a duty to
investigate his claims that he is subject to a conspiracy among
prison officials and inmates to murder and harass him and that
the district court should compel the FBI to perform its duty.
A writ of mandamus is not available to review the
discretionary acts of officials. Giddings v. Chandler, 979 F.2d
1104, 1108 (5th Cir. 1992). The FBI’s decision to investigate a
complaint is a discretionary decision. See 28 U.S.C. § 535(a).
Further, the writ is not available if the petitioner has an
alternative remedy. In re Stone, 118 F.3d 1032, 1034 (5th Cir.
1997). Keelen has an alternative remedy in the form of civil
rights actions against the prison officers who are allegedly
violating his constitutional rights. Keelen did not demonstrate
that he was entitled to a writ of mandamus.
Keelen has not shown that the district court erred in
certifying that an appeal would not be taken in good faith. He
has not shown that he will present a nonfrivolous issue on
appeal. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, the motion for leave to proceed in forma pauperis is
DENIED and the appeal is DISMISSED as frivolous. Baugh, 117 F.3d
at 202 n.24; 5TH CIR. R. 42.2.
The dismissal of this appeal and the district court’s
dismissal of Keelen’s mandamus petition as frivolous and for
failure to state a claim count as strikes under the Prison

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No. 03-30542
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Litigation Reform Act. Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996); In re Crittenden, 143 F.3d 919, 920 (5th Cir.
1998). Keelen previously obtained a strike when his appeal was
dismissed in Keelen v. Cain, No. 02-31031 (5th Cir. Apr. 8,
2003), and he was cautioned in that opinion that the accumulation
of three strikes would result in the imposition of a bar under 28
U.S.C. § 1915(g). Because Keelen has accumulated three strikes
under 28 U.S.C. § 1915(g), he is BARRED from proceeding IFP in
any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. 28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915 BAR
IMPOSED.

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