Opinion
No. 3:19-cv-02456-L (BT)
12-10-2019
ALEX NEAL, Petitioner, v. THE STATE OF TEXAS, Respondent.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Alex Neal, a state prisoner, filed a pro se petition for a writ of mandamus seeking an order directing the Texas Fifth District Court of Appeals to grant him a jury trial on his state petition for writ of habeas corpus, and the Court granted him leave to proceed in forma pauperis. For the following reasons, the Court should dismiss the petition.
I.
Neal's petition is subject to preliminary screening under 28 U.S.C. § 1915A, which provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b). Additionally, under 28 U.S.C. § 1915(e), a district court may summarily dismiss a complaint filed in forma pauperis if it concludes the action is: (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
II.
Neal's petition fails to state a claim upon which relief may be granted. Federal courts lack "the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought." Moye v. Dekalb County Sup. Ct., 474 F.2d 1275, 1276 (5th Cir. 1973). Here, Neal seeks only mandamus relief against the Texas Fifth District Court of Appeals. The petition should therefore be summarily dismissed. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997) (affirming dismissal of petition for writ of mandamus as frivolous because federal courts lack the power to mandamus state courts in the performance of their duties).
III.
The Court should summarily dismiss the petition with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.
Signed December 10, 2019.
/s/_________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk is directed to serve a true copy of these findings, conclusions, and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions, and recommendation must serve and file written objections within 14 days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. A party's failure to file such written objections to these proposed findings, conclusions, and recommendation will bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, any failure to file written objections to the findings, conclusions, and recommendation within 14 days after being served with a copy will bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).