Opinion
Civ. No. 15-6357 (RBK) (KMW)
10-24-2016
VICTOR POLANCO-CABRERA, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
OPINION
ROBERT B. KUGLER , U.S.D.J.
I. INTRODUCTION
Plaintiff is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Previously, this matter was transferred to the United States District Court for the Middle District of Florida and closed in this Court. Presently pending before this Court is plaintiff's motion for a writ of mandamus. (See Dkt. No. 11) Accordingly, this Court will reopen this action so that petitioner's motion can be ruled upon. For the following reasons, the motion for writ of mandamus will be denied.
II. BACKGROUND
On October 13, 2015, this Court granted plaintiff's application to proceed in forma pauperis in this case. This action was then transferred to the Middle District of Florida because the defendants named resided in the Middle District of Florida and the events giving rise to his allegations in the complaint also took place in the Middle District of Florida. There were no allegations in the complaint (besides plaintiff's currently place of incarceration) that took place in New Jersey. Accordingly, the matter was transferred.
Several months later, this Court received a motion for writ of mandamus from plaintiff. In that motion, he indicates that he is improperly being charged a filing fee by both this Court and the Middle District of Florida for the same proceeding. Thus, according to plaintiff, he is currently paying filing fees for one civil action, in two courts. He requests this Court order the Federal Bureau of Prisons to discontinue garnishment from his institutional pay.
III. DISCUSSION
Under 28 U.S.C. § 1361, a district court has "jurisdiction over a mandamus action to compel an employee of the United States to perform a duty owed to the plaintiff." Taylor v. Hayman, 435 F. App'x 62, 63 (3d Cir. 2011). In this case, plaintiff asserts that the duty that is owed to him is to not be charged by both this Court and the Middle District of Florida for the same filing fee.
Petitioner is incorrect in asserting that he is being charged twice for the same filing fee by this Court and the Middle District of Florida. Prior to this Court transferring this action to the Middle District of Florida, plaintiff had a pending civil action in the Middle District of Florida. (See M.D. Fl. Civ. No. 15-0388) The Middle District of Florida granted plaintiff's application to proceed in forma pauperis in that case on September 22, 2015. (See M.D. Fl. Civ. No. 15-0388 Dkt. No. 6) The case inquiry report from the Middle District of Florida in Civ. No. 15-0388, which is attached to this Opinion, indicates that plaintiff has been making payments to that Court on that civil action number. Plaintiff's payments to the Middle District of Florida relate to that case, not the case that was transferred to the Middle District of Florida by this Court docketed at M.D. Fl. Civ. No. 15-0539. Furthermore, this Court has confirmed with the Middle District of Florida Clerk's Office that it has not received any payments from plaintiff for the case that was transferred to that district from this Court in M.D. Fl. Civ. No. 15-0539.
This Court has also attached the case inquiry report from the case (D.N.J. Civ. No. 15-6357) that plaintiff filed in this district to show the payments plaintiff has made so far on the filing fee in this case. --------
Plaintiff's fundamental premise that he is being charged two filing fees for the same case is incorrect. He is not entitled to mandamus relief.
IV. CONCLUSION
For the foregoing reasons, plaintiff's motion for writ of mandamus (Dkt. No. 11) is denied. An appropriate order will be entered. DATED: 10-24-2016
/s/_________
ROBERT B. KUGLER
United States District Judge
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