Summary
holding that mandamus relief is not available for plaintiff's claim because it was being reviewed through the habeas process
Summary of this case from U.S. v. Provencio-SandovalOpinion
No. 09-3011.
July 27, 2009.
Appeal from the United States District Court for the District of Kansas.
Perry York, Elk River, MN, pro se.
Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.R.App.P. 32.1 and 10th Cir. R. 32.1.
Perry York, a former federal inmate proceeding pro se, appeals the district court's denial of petition for mandamus seeking an order of release from custody. See 28 U.S.C. § 1361 (granting to the district courts "original jurisdiction of 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").
Availability of Mandamus
"Mandamus is a drastic remedy, available only in extraordinary circumstances. Furthermore, the writ is not available when review by other means is possible." W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993) (citations omitted). Mr. York's mandamus petition challenged "the order in which his consecutive sentences were to be served." R. at 33. In a habeas case filed under 28 U.S.C. § 2241, Mr. York made a similar argument. York v. U.S. Parole Comm'n, 330 Fed.Appx. 163, 164-65 (10th Cir. 2009) (unpublished). The district court denied the petition for mandamus and dismissed the habeas petition. Mr. York appealed. Recently, this court reversed and remanded the habeas case for further proceedings. Id. at 165. Because Mr. York's claim is being reviewed in the habeas process, "mandamus is not available" to him. W. Shoshone Bus. Council, 1 F.3d at 1059.
Applicability of PLRA
Mr. York has filed a motion to proceed on appeal in forma pauperis. We note that this court assessed partial payments under the Prison Litigation Reform Act (PLRA) section that provides "if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee" on an installment plan. 28 U.S.C. § 1915(b)(1). Due to the interrelated nature of Mr. York's mandamus and § 2241 habeas matters, we conclude that Mr. York's mandamus petition is not "a civil action" as contemplated by § 1915(b). Cf. In re Phillips, 133 F.3d 770, 771 (10th Cir. 1998) (noting filing fees not required for habeas matters and holding "this circuit will no longer require mandatory fees under the PLRA for filing petitions for writs of mandamus seeking to compel district courts to hear and decide actions brought solely under 28 U.S.C. §§ 2241, 2254, 2255").
We AFFIRM the district court's denial of Mr. York's mandamus petition. We also VACATE this court's assessment order and GRANT Mr. York's motion to proceed in forma pauperis without payment of the filing fee.