Opinion
No. 3-04-CV-2192-B.
October 18, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil action brought by Petitioner Byron Bernard Dupree, an inmate in the TDCJ-ID, seeking a writ of mandamus against Dallas County District Attorney Bill Hill. On October 8, 2004, petitioner tendered a pro se complaint and filed a motion to proceed in forma pauperis. Because the information provided by petitioner in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this action, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. The court now determines that this case is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
In 1998, petitioner was convicted of possession with intent to deliver cocaine and sentenced to 20 years confinement. After exhausting his state remedies, petitioner sought habeas relief in federal court. His writ was dismissed on limitations grounds. Dupree v. Cockrell, No. 3-02-CV-1733-G (N.D. Tex. Jun. 16, 2003), COA denied, No. 03-10668 (5th Cir. Oct. 9, 2003). Petitioner then sued Dallas County District Attorney Bill Hill for civil rights violations under 42 U.S.C. § 1983. In his complaint, petitioner accuses Hill of failing to prosecute two Dallas police officers who allegedly engaged in illegal conduct to secure his conviction. That case is currently pending before another judge in this district. Dupree v. Hill, No. 3-04-CV-0443-D. Dissatisfied with the progress of his civil rights case, petitioner seeks a writ of mandamus to compel Hill to act on his complaint against the two police officers and to file criminal charges against them.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Petitioner seeks an order compelling Dallas County District Attorney Bill Hill to investigate his allegations of illegal conduct against two Dallas police officers and to file criminal charges against them. However, federal courts have no authority to direct state courts or judicial officers in the performance of their official duties. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973), citing Lamar v. 118th Judicial District Court, 440 F.2d 383 (5th Cir. 1971); Bagley v. Francis, 2002 WL 31261040 at *1 (N.D. Tex. Oct. 7, 2002). This prohibition also applies to state prosecutors. Lewis v. Texas, 2001 WL 1075827 (5th Cir. Aug. 21, 2001). Consequently, petitioner's claim is without an arguable basis in law and should be summarily dismissed.
RECOMMENDATION
Petitioner's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).