United States District Court, M.D. Georgia, Athens Division
ASHLEY ROYAL, SENIOR JUDGE UNITED STATES DISTRICT COURT.
pending before the Court is the pro se petition for
writ of mandamus filed by Petitioner Darnell Nolley, an
inmate presently confined at the Valdosta State Prison in
Valdosta, Georgia (ECF No. 1). Petitioner has also filed a
motion for leave to proceed in forma pauperis in
this action (ECF No. 4). For the reasons discussed below,
Petitioner's Petition is DISMISSED without
prejudice, and his motion for leave to proceed
in forma pauperis is GRANTED for
purposes of this dismissal only.
Standard of Review
Petitioner is proceeding in forma pauperis, the
Court will conduct a preliminary screening of this case in
accordance with the provisions of 28 U.S.C. §
1915(e)(2)(B). See, e.g., Stine v. Collins, 280
Fed.Appx. 761 (10th Cir. 2008) (unpublished opinion)
(affirming denial of prisoner's petition for writ of
mandamus and dismissal of action as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i)); Weldon v. U.S. Attorney for
Middle Dist., 294 Fed.Appx. 697, 697 (3d Cir. 2008) (per
curiam) (affirming dismissal of petition for mandamus
pursuant to 28 U.S.C. § 1915(e)(2)). When screening a
complaint under 28 U.S.C. § 1915(e), the Court must
accept all factual allegations in the complaint as true.
Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir.
2003). Pro se pleadings, like the one in this case,
are “held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally
construed.” Id. Still, § 1915(e)(2)
requires a district court to dismiss the complaint of a party
proceeding in forma pauperis whenever the court
determines the complaint is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary damages from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
is frivolous if it “lacks an arguable basis either in
law or in fact.” Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008) (internal quotation marks
omitted). The Court may dismiss claims that are based on
“indisputably meritless legal” theories and
“claims whose factual contentions are clearly
baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not
include “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The factual allegations in a complaint
“must be enough to raise a right to relief above the
speculative level” and cannot “merely create a
suspicion [of] a legally cognizable right of action.”
Twombly, 550 U.S. at 555 (first alteration in
original). In other words, the complaint must allege
enough facts “to raise a reasonable expectation that
discovery will reveal evidence” supporting a claim.
Id. at 556. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
Factual Allegations and Petitioner's Claims
moves the Court for issuance of a writ of mandamus pursuant
to 28 U.S.C. § 1361, directing Respondent to enter a
ruling “on the merits” in Petitioner's
presently-pending federal habeas corpus action, Nolley v.
Williams, Case No. 3:17-cv-00054-CDL-CHW (M.D. Ga. Mar.
17, 2017) (“Nolley I”). Pet. 1, ECF No.
U.S.C. § 1361 provides the federal district courts with
the authority “to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to
the plaintiff.” Mandamus is, however, “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) (per
curiam) (internal quotation marks omitted). Mandamus should
only issue when “(1) the plaintiff has a clear right to
the relief requested; (2) the defendant has a clear duty to
act; and (3) no other adequate remedy [is] available.”
Id. at 1258 (internal quotation marks omitted)
(alteration in original). The party seeking the writ bears
“the burden of showing that (his) right to issuance of
the writ is clear and indisputable[.]” Kerr v. U.S.
Dist. Court, 426 U.S. 394, 403 (1976) (internal
quotation marks omitted).
has failed to meet the burden of showing that he has a clear
right to the relief requested. First, this Court does not
have the authority to grant such a writ. The powers granted
under § 1361 extend only to mandamus actions filed
against officers and employees of the executive branch.
Trackwell v. U.S. Gov't, 472 F.3d 1242, 1246-47
(10th Cir. 2007); Liberation News Svc. v. Eastland,
426 F.2d 1379, 1384 (2d Cir. 1970) (finding that legislative
history demonstrates that “in enacting §§
1361 and 1391(e), Congress was thinking solely in terms of
the executive branch”). 28 U.S.C. § 1361 does not
grant a district court the authority to issue writs against
other federal courts. See Trackwell, 472 F.3d at
1246 (“For a district court to issue a writ of mandamus
against an equal or higher court would be
remarkable.”); cf. also Ballentine v. Roberts,
Civil No. 2008-60, 2008 WL 4560742, at *2 (D.V.I. Oct. 8,
2008) (noting that an “extensive review” failed
to uncover any court decision recognizing “as legally
valid a claim asking an inferior court to compel a higher
court to exercise the higher court's authority”).
even though Respondent has yet to rule on the Magistrate
Judge's Recommendation and Petitioner's
recently-filed objections thereto, nothing in
Petitioner's pleading suggests that Respondent has
allowed this habeas case to languish. Three days before
Petitioner signed his Petition in the above-captioned action,
the United States Magistrate Judge entered a Report and
Recommendation on the merits in Nolley I,
recommending the dismissal of Petitioner's habeas
petition without prejudice. Report &
Recommendation 1, May 25, 2018, ECF No. 49. Petitioner filed
a motion for extension of time to object to the
Recommendation, and on June 14, 2018, Petitioner filed the
objections themselves. Petitioner has simply not experienced
any unreasonable delay in any rulings in this case. Cf.,
e.g., In re Williams, 408 Fed.Appx. 561, 561 (3d Cir.
2010) (holding that a delay of only a few months after
petitioner filed habeas petition did not constitute such
undue delay as to warrant mandamus relief); MacKenzie v.
California Attorney Gen., CV12-00432, 2013 WL 3872114,
at *3 (C.D. Cal. Mar. 12, 2013) (observing that “delays
of four months or more in ruling on a ripe habeas
petition-and a full year in at least one case-did not rise to
the level necessary to trigger the extraordinary remedy of
mandamus”). Petitioner has therefore failed to meet his
burden of showing that the “extraordinary remedy”
of mandamus is clearly warranted in this case.
foregoing reasons, Petitioner's petition for mandamus
relief under 28 U.S.C. § 1361 is DISMISSED
without prejudice. Petitioner's motion for leave
to proceed in forma pauperis (ECF No. 4) is
GRANTED for purposes of this dismissal