Opinion
7:02-CV-089-R
April 25, 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 Cnminal Justice in Iowa Parke Texas. Crowder claims that he has been threatened with physical assault by other inmates and that he has been exposed to "contagiously ill" inmates at the Alfred Unit. Petition pp. 1-2. He seeks a writ of mandamus compelling Respondents to perform their ministerial duty of providing him with protection against these dangers. Petition p. 8.
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, 93 8-39 (5th Cir. 1992); In re Sessions, 672 F.2d 564, 566 (5th Cir. 1982).
Respondents in the case at bar are employees of the Texas Department of Criminal Justice. They are not officers or employees ofthe United States or any agency thereof. Therefore, the District Court is without authority to issue a writ of mandamus compelling Respondents to act. See United States v. Wesson, 33 E3d 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 mandarmus against a private attorney who was involved in a dispute with his client). To the extent that Petitioner seeks monetary damages and/or injunctive relief on a claim that he incarcerated under conditions posing a substantial risk of serious harm, his remedy in this Court is to file an action under 42 U.S.C. § 1983 using the Court's prisoner civil rights form which is available through his unit law library.
The Court notes that Crowder previously filed a civil rights achon in which he raised failuresto. protect claims against Allred Unit officials. The complaint was dismissed as frivolous because Crowder failed, upon request, to provide the Court with factual support for his claims. See Crowder v. Wathen, 7:99-CV-2 18 R (N.D. Tex. 2001).
A district court may dismiss an in forma pauperis 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). Plaintiff's petition for writ of mandamus has no arguable basis in law.
IT IS THEREFORE ORDERED that this case is hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i), but without prejudice to Crowder's right to seek relief under 42 U.S.C. § 1983.