Opinion
No. 3:04-CV-1648-R.
October 25, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil action brought by a state inmate.
Parties: Petitioner is presently confined at the McConnell Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Beeville, Texas. Respondent is State Judge Robert W. Francis. The Court has not issued process in this case.
Statement of Case: Petitioner seeks to an order requiring Judge Robert Francis to make available for inspection and for copying records and documents from a state court criminal prosecution. The court liberally construes Petitioner's request as a petition for writ of mandamus.
Findings and Conclusions: The magistrate judge has permitted Petitioner to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The fee provisions of 28 U.S.C. § 1915(b) do not apply to this action since it is tantamount to a petition for writ of mandamus stemming from a state criminal or state post-conviction action. See In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997) (petition for writ of mandamus that arose out of state application for post-conviction relief was not subject to fee payment requirements of § 1915).
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint . . . if the complaint . . . fails to state a claim upon which relief may be granted. . . .28 U.S.C. § 1915A(a) and (b)(1) (emphasis added). See also 28 U.S.C. § 1915(e)(2).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Federal courts are without power to issue writs of mandamus against state officers in the performance of their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). A review of the pleadings in this case reflects that the only relief sought is mandamus against a state district judge. Therefore, Petitioner's request for a writ of mandamus against Judge Francis lacks an arguable basis in law and should be dismissed with prejudice as frivolous pursuant to § 1915A(b)(1) and § 1915(e)(2)(B)(i). See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (affirming dismissal of petition for writ of mandamus as frivolous because federal courts lack the power to mandamus state courts in the performance of their duties).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Petitioner's pleadings, construed as a petition for writ of mandamus, be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Petitioner Jimmy Clyde Darughtery, #845362, TDCJ, McConnell Unit, 3001 S. Emily Drive, Beeville, Texas 78102.