Opinion
No. 7:01-CV-23-R
January 30, 2002
ORDER OF DISMISSAL
This is a petition for writ of mandamus brought pursuant to 28 U.S.C. § 1361 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Respondent, Barry Macha, is the Wichita County District Attorney. Buckley claims that Macha has failed to file a criminal complaint against a guard at the Allred Unit whom Petitioner claims assaulted him. Buckley asks this Court to issue a writ of mandamus directing Macha to file the charges.
The Mandamus Act vests the District Court with original jurisdiction over "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." 28 U.S.C. § 1361; Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992). Mandamus is an extraordinary form of relief which the court may grant only when the petitioner is able to establish that: 1) he is clearly entitled to the relief requested, 2) the respondent has a clear duty to act, and 3) no other adequate remedy is available. Herbert v. Exxon Corp., 953 F.2d 936, 938-39 (5th Cir. 1992); In re Sessions, 672 F.2d 564, 566 (5th Cir. 1982).
Respondent in the case at bar is an employee of Wichita County. He is not an officer or employee of the United States or any agency thereof. Therefore, the District Court is without authority to issue a writ of mandamus compelling Respondent to bring criminal charges against a guard at the Allred Unit. See United States v. Wesson, 33 F.3d 788, 798 (7th Cir. 1994), cert denied, 513 U.S. 1100, 115 S.Ct. 773 (1995) (affirming the district court's ruling that it had no authority to issue a writ of mandamus against a private attorney who was involved in a dispute with his client). To the extent, if any, that Petitioner seeks redress on a claim of unnecessary or excessive force used against him by a prison guard, his remedy in this Court would be an action filed pursuant to 42 U.S.C. § 1983.
A district court may dismiss an action as frivolous if the claims present no arguable basis in law or fact or have no realistic chance of success. E.g., Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728 (1992); Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th Cir. 1989). Buckley's petition for writ of mandamus has no arguable basis in law.
IT IS THEREFORE ORDERED that this case is hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
See Graves v. Hampton, 1 F.3d 315, 31849 (5th Cir. 1993) (holding dismissal "with prejudice" appropriate where claims clearly have no basis in law).
A copy of this order shall be mailed to Petitioner.