Opinion
7:02-CV-274-D
December 5, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS:
Petitioner, an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas, filed this action seeking a writ of mandamus. No process has been issued in this case. Flanagan alleges that Respondent, United States District Judge Jerry Buchmeyer, has failed to take action in a timely manner with regard to a civil rights action previously filed by Petitioner. See Flanagan v. Wyatt, 7:02-CV-202-R (N.D. Tex.). He seeks a writ of mandamus directing Judge Buchmeyer to rule on the earlier case.
The Mandamus Act, 28 U.S.C. § 1361, vests the district court with original jurisdiction over "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." Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992); 28 U.S.C. § 1361. Mandamus is an extraordinary form of relief which the court may grant only when the petitioner is able to establish that: 1) he is clearly entitled to the relief requested; 2) the respondent has a clear duty to act, and; 3) no other adequate remedy is available. Herbert v. Exxon Corp., 953 F.2d 936, 938-39 (5th Cir. 1992); In re Sessions, 672 F.2d 564, 566 (5th Cir. 1982).
A review of Petitioner's pending civil rights action reflects that the case was filed on September 23, 2002. Plaintiff was granted leave to proceed in forma pauperis in that action and the case is currently undergoing the screening process required pursuant to the Prison Litigation Reform Act of 1995 ("the PLRA"). The Court notes that a questionnaire was issued to Petitioner on November 21, 2002. He has not yet filed his answers. Contrary to Petitioner's argument, Respondent has no clear duty to rule on his case at this time. Because his prior civil rights action is currently undergoing screening, Flanagan is not entitled to the relief he seeks in the case at bar.
Title 28, United States Code, Section 1915(e)(2)(B)(i) mandates dismissal of an action filed by an inmate proceeding in forma pauperis if the court determines that the claims raised therein are frivolous. 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 (1989); Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). In the instant case, the request for a writ of mandamus lacks any arguable basis in law.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that the petition for writ of mandamus be dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).