Opinion
Civil Action No. 1:01-CV-182-C
March 8, 2002
ORDER
On September 25, 2001, Petitioner James Carl Hollis filed a "Petition for Writ of Mandamus," a "Brief in Support of Petition for Writ of Mandamus," an Application to Proceed In Forma Pauperis, and a certificate of inmate trust account. Petitioner complains that the law library at the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") Middleton Unit is inadequate and requests that this Court order Respondent Pigg "to immediately transfer Petitioner to a TDCJ-ID Unit that contains" the legal materials listed in his petition. Respondent Pigg has not filed an answer.
District courts have original jurisdiction over any action "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the [petitioner]." 28 U.S.C. § 1361; Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992). To obtain mandamus relief, a petitioner must therefore establish "(1) a clear right to the relief, (2) a clear duty owed by the respondent to do the act requested, and (3) the lack of any other adequate remedy." Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998) (quoting In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997)). Mandamus is an extraordinary remedy that should be granted only "when the [petitioner's] claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt." Giddings v. Chandler, 979 F.2d at 1108. See Campanioni v. Barr, 962 F.2d 461, 464 (5th Cir. 1992) (quoting In re W.R. Grace Co. — Conn., 923 F.2d 42, 44 (5th Cir. 1991) ("Mandamus is extraordinary relief that should not issue if `other means of obtaining relief is available.'").
Petitioner has failed to establish that Respondent Pigg is an officer or employee of the United States or one of its agencies. Indeed, Petitioner clearly states that Respondent Pigg is the Warden of the TDCJ-ID Middleton Unit and as such, he is an employee of the TDCJ-ID, an agency of the State of Texas. Thus, this Court does not have jurisdiction to issue a writ of mandamus to direct the action of Respondent Pigg. See Harris v. Angelina County, Tex., 31 F.3d 331, 337 n. 6 (5th Cir. 1994) (noting that TDCJ is an agency of the State of Texas). Moreover, Petitioner has not demonstrated that he has a constitutional right or even a right under state law to be transferred to another prison unit. See Meachum v. Fano, 427 U.S. 215, 224 (1976) ("The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison if, as is likely, the State has more than one correctional institution."); Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995) (finding that a Texas prisoner failed to demonstrate that state law created a liberty interest requiring his transfer from county jail to the TDCJ). See also Davis v. Carison, 837 F.2d 1318, 1819 (5th Cir. 1988) (holding that a court may not order the transfer of an inmate where there is no clear duty on the part of the prison to transfer said inmate).
To the extent that Petitioner's complaint could be liberally construed as a request for relief under 42 U.S.C. § 1983, his request only for injunctive relief has been mooted by his transfer from the TDCJ-ID Middleton Unit to the TDCJ-ID Lewis Unit in Woodville, Texas. See Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) (holding that complaint requesting injunctive relief for unconstitutional prison conditions at state prison unit was rendered moot when inmate was transferred to another unit). Furthermore, because Petitioner cannot demonstrate that he had a constitutional right to be transferred to another TDCJ-ID unit, he has failed to state a claim for which relief could be granted under § 1983.
Although Petitioner did not notify the Clerk of this Court of his change of address, he did notify the Clerk of the United States District Court for the Northern District of Texas, Fort Worth Division, in Civil Action No. 4:01-CV-639, that he had been transferred to the Lewis Unit.
Petitioner's Petition for Writ of Mandamus is a civil action filed by a prisoner under 28 U.S.C. § 1915 and Petitioner has requested permission to proceed in forma pauperis. The Court takes judicial notice of the following:
(1) Civil Action No. 6:95-CV-583 (prisoner civil rights complaint) United States District Court for the Eastern District of Texas (Tyler) Dismissed with prejudice as frivolous on October 6, 1995 No appeal
(2) Civil Action No. 6:95-CV-608 (prisoner civil rights complaint) United States District Court for the Eastern District of Texas (Tyler) Dismissed with prejudice as frivolous on April 4, 1996 No Appeal
(3) Civil Action No. 6:95-CV-685 (prisoner civil rights complaint) United States District Court for the Eastern District of Texas (Tyler) Dismissed without prejudice on February 12, 1996
(4) Civil Action No. 4:00-CV-268 (prisoner civil rights complaint) United States District Court for the Northern District of Texas (Ft. Worth) Dismissed with prejudice for failure to state a claim on April 20, 2000 Appeal dismissed on August 25, 2000 for want of prosecution
(5) Civil Action No. 4:01-CV-639 (prisoner civil rights complaint) United States District Court for the Northern District of Texas (Ft. Worth) Dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b) on September 28, 2001
No Appeal
Thus, when Petitioner filed his petition on September 20, 2001, he had three prior civil actions which had been dismissed as frivolous, malicious, or for failure to state a claim upon which relief could be granted and his request to proceed in forma pauperis should be denied pursuant to 28 U.S.C. § 1915(g).
Petitioner filed the instant petition on September 25, 2001, but he signed and dated his Application to Proceed In Forma Pauperis on September 20, 2001. The Court shall therefore presume that September 20, 2001, was the date on which Petitioner delivered the petition to prison officials for mailing and deem it to be filed as of September 20, 2001. See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995) (holding that a prisoner's pro se complaint is considered filed as soon as the pleadings have been delivered to prison authorities for mailing).
It is, therefore, ORDERED that:
1. Petitioner's Application to Proceed In Forma Pauperis is denied.
2. Petitioner shall pay the $150.00 filing fee and shall be barred from filing any civil complaints in this Court until the filing fee is paid in full.
3. Petitioner's Petition for Writ of Mandamus is dismissed with prejudice, and to the extent that the petition can be construed as a civil rights complaint pursuant to 42 U.S.C. § 1983, the complaint is dismissed with prejudice.
4. The Clerk shall return, without filing, any motions or other pleadings submitted by Petitioner for filing in this Civil Action No. 1:01-CV-182-C, except for a notice of appeal, which must be accompanied by the appeal fee of $105.00. Petitioner shall be not be granted permission to proceed in forma pauperis on appeal in this civil action.
5. This dismissal shall count as a qualifying dismissal under the Prison Litigation Reform Act and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).