United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION AND ORDER
E. CLAYTON SCOFIELD, III, Magistrate Judge.
Texas state inmates Donald Ellis and Lee Crayton are prolific filers of federal lawsuits. See www.pacer.gov (last viewed March 12, 2015; searched for "Ellis, Donald" and "Crayton, Lee"). Mr. Ellis and Mr. Crayton have now filed in this Court substantially identical applications for writs of mandamus (the "Applications"). See [-715 Doc. No. 1]; [-716 Doc. No. 1]. For the following reasons, the undersigned RECOMMENDS that Mr. Crayton's Application be DISMISSED WITHOUT PREJUDICE because he is ineligible to proceed in forma pauperis ("IFP") and that Mr. Ellis's Application be DISMISSED for failure to state a claim upon which relief may be granted.
Mr. Crayton has accumulated "three strikes" for purposes of 28 U.S.C. § 1915(g). See, e.g., Crayton v. Solis, No. 1:14-MC-1198 (D.D.C. Oct. 29, 2014). Section 1915(g) applies to mandamus actions. See, e.g., In re Kissi, 652 F.3d 39, 40 (D.C. Cir. 2011). Because Mr. Crayton has not credibly alleged that he is in "imminent danger of serious physical harm, " 28 U.S.C. § 1915(g), this Court should deny him permission to proceed IFP and dismiss the case without prejudice. See generally Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
Because Mr. Ellis does not yet appear to have accumulated three strikes for purposes of § 1915(g), this Court must screen his Application to determine whether it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. Federal courts may issue writs 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. Mandamus relief is "an extraordinary remedy which should be utilized only in the clearest and most compelling of cases." Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003). Thus, a writ of mandamus may issue only if "(1) the [applicant] has a clear right to the relief requested; (2) the [respondent] has a clear duty to act; and (3) no other adequate remedy is available." Id. at 1258 (internal quotation marks omitted).
Mr. Ellis demands that Assistant United States Attorney Thomas Krepp be ordered to summon him as a "crime-victim" witness in United States v. Shabazz, No. 1:13-CR-441-TCB-ECS (N.D.Ga. filed Nov. 6, 2013). See [-715 Doc. No. 1 at 1]. Assuming purely for the sake of discussion that Mr. Ellis might plausibly be called as a witness, Mr. Krepp possesses broad discretion to chose how to proceed with the prosecution. See generally United States v. Goodwin, 457 U.S. 368, 382 (1982) ("A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution."). Mr. Ellis has neither alleged facts that would demonstrate that he has a "clear right" to be called as a witness, nor has he alleged facts that would demonstrate that Mr. Krepp has a "clear duty" to call him as a witness. Thus, Mr. Ellis's application for a writ of mandamus does not meet the requirements set forth in Cash and fails to state a claim upon which relief might be granted.
Solely for the purpose of dismissal, Mr. Ellis is GRANTED permission to proceed IFP.
The Clerk is DIRECTED to terminate the referral of these cases to the undersigned.
SO RECOMMENDED, ORDERED, AND DIRECTED, .
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Attached is the report and recommendation of the United States Magistrate Judge in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Civil Local Rule 72. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the report and recommendation within fourteen (14) days of service of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the report and recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983).
The Clerk is DIRECTED to submit the report and recommendation with objections, if any, to the District Court after ...