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Bennie K. Ellison, No. R-00575 v. Mathew Kennelly

April 26, 2013


The opinion of the court was delivered by: Murphy, District Judge:


Plaintiff Bennie K. Ellison is currently incarcerated at Stateville Correctional Center. Ellison, proceeding pro se, has filed an "Emergency Federal Petition of Mandamus for Sua Sponte Orders" in this district court, aimed at seven federal judges in the Northern District of Illinois, two judges in the Central District of Illinois and seven judges in the Seventh Circuit Court of Appeals (Doc. 1).*fn1 Ellison has also filed a motion for leave to proceed in forma pauperis, pursuant to 28 U.S.C. 1915 (Doc. 3).

In essence, Ellison wants this Court to order the judges of its sister district courts and judges of the superior appellate court to "perform their federal duties" and grant Ellison the relief he seeks in three cases: Ellison v. Pfister, No. 12-cv-1356 (C.D. Ill. Sept. 14, 2012) (a prison civil rights action); Ellison v. Godinez, No. 12-cv-1363 (C.D. Ill. Sept. 14, 2012) (a prison civil rights action); and Ellison v. Cook County Sheriff, No. 12-1613 (7th Cir. Mar. 15, 2012) (the appeal of No. 10-cv-2088 (N.D. Ill. Nov. 28, 2011) (a civil rights action pertaining to when Ellison was a pretrial detainee)). From Ellison's perspective, if all of various judges perform their duties as they should, he is entitled to immediate release and $3,000,000, plus interest from the Cook County Sheriff's Department.

Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff's allegations as true, the Court finds that this action is subject to summary dismissal for the following reasons.

Subject Matter Jurisdiction

The writ of mandamus has been abolished. See Fed.R.Civ.P. 81(b). Nevertheless, there are two federal statutes that a party may invoke to obtain a writ of mandamus: 28 U.S.C. § 1361 and 28 U.S.C. § 1651. Ellison has not specified a basis for his action.

Section 1361, titled "Action to compel an officer of the United States to perform his duty," provides: "The district courts shall have 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." This statute has been construed as inapplicable to the federal courts. Trackwell v. U.S. Gov't, 472 F.3d 1242, 1245 (10th Cir. 2007); Smith v. Krieger, 643 F.Supp.2d 1274, 1281 (D. Colo. 2009). Trackwell and Smith both relied upon Hubbard v. United States, 514 U.S. 695, 699 (1995), in which the Supreme Court stated that the federal courts were not referred to as departments or agencies-terms reserved for components of the Executive Branch. See also Liberation News Service v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970) (applying the same interpretation to identical language in 28 U.S.C. § 1391(e)).

Section 1651(a) provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Unlike Section 1361, Section 1651 is only a mechanism by which the Court asserts its jurisdiction, it is not a source of jurisdiction. United States v. Illinois Bell Telephone Co., 531 F.2d 809, 814 (7th Cir. 1976).

This type of writ of mandamus "has traditionally been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976) (internal citations and quotations omitted and emphasis added). A petitioner seeking mandamus must show that (1) no other adequate means exist to attain the desired relief, (2) his right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances of his case. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-381 (2004). Plaintiff cannot meet this test.

This Court cannot direct the Court of Appeals for the Seventh Circuit because that is a superior court. Furthermore, a writ of mandamus "must not be used as a mere substitute for appeal." 16 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3932, at 185 (2nd ed. 1996). See also Helstoski v. Meanor, 442 U.S. 500, 506 (1979) (addressing the narrow scope of a writ of mandamus in a criminal proceeding). Neither can this Court direct its sister district courts, which are of equal stature. Rather, Plaintiff Ellison's remedy lies in an appeal. Consequently, this Court lacks subject matter jurisdiction over this action and it must be dismissed.

Dismissal for lack of subject matter jurisdiction in a situation such as this, where the assertion of jurisdiction is frivolous, constitutes as "strike" for purposes of 28 U.S.C. § 1915(g). See Okoro v. Bohman, 164 F.3d 1059, 1063 (7th Cir. 1999).

Pauper Status

In Martin v. United States, 96 F.3d 853, 854 (7th Cir. 1996), the Court of Appeals for the Seventh Circuit concluded that a petition for mandamus in civil litigation falls within the scope of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. 104-134, Title VIII, 110 Stat.1321.*fn2 Plaintiff specifies that this is a petition for a writ of mandamus, which falls within the ambit of 28 U.S.C. §§ 1361 and 1651; therefore the PLRA is applicable.

The PLRA precludes a prisoner from bringing a civil action in forma pauperis if at least three of the inmate's prior lawsuits have been dismissed as frivolous, malicious, or for failing to state a claim on which relief may be granted. 28 U.S.C. ยง 1915(g). An exception exists-when a prisoner is in danger of serious ...

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