United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Preston Smith, an inmate confined at the United States
Penitentiary - Hazelton in Bruceton Mills, West Virginia, has
sent a letter to the Court seeking a writ of mandamus. [R.
1]. Seven days after filing his initial letter, Smith filed a
second letter seeking to have this case consolidated with
another civil action he states he filed in the United States
District Court in Beckley, West Virginia. [R. 2]. Smith has
not paid the $350.00 filing fee and the $50.00 administrative
fee or filed a motion to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a).
a district court may permit a prisoner to pay the $350.00
filing fee in installments upon appropriate motion. 28 U.S.C.
§ 1915(b). But 28 U.S.C. § 1915(g) requires the
prisoner to pay the filing fee in full at the outset of the
case if the prisoner has, while in custody, filed three or
more civil cases or appeals in federal court which were
dismissed as frivolous or for failure to state a claim upon
which relief may be granted. 28 U.S.C. § 1915(g).
may take judicial notice of undisputed information contained
on government websites, Demis v. Sniezek, 558 F.3d
508, 513 n.2 (6th Cir. 2009), and may consider such
information when determining whether a claim must be
dismissed for failure to state a claim, Lovelace v.
Software Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir.
1996). Smith has previously been found by this Court to be an
abusive litigator. Smith v. Farley, et al., No.
7:14-102-ART (E.D. Ky. 2014). Indeed, the federal courts'
online PACER database establishes that Smith has quite a
litigious history, as he is named as plaintiff or petitioner
in over 60 civil cases. Smith has previously been enjoined
from filing any actions in the United States District Court
for the Southern District of West Virginia without the
representation of an attorney without prior permission from
the Court or unless he has paid the required filing fee in
full. Smith v. Hayden, et al., No. 5:05-cv-884 at R.
37 (S.D. W.Va. June 2, 2009).
has had three or more prisoner civil rights actions dismissed
as frivolous or for failure to state a claim upon which
relief may be granted. See id. at R. 25 (describing
Smith's litigation history as of February 3, 2009).
See also Smith v. Menefee, 1:09-CV-00034, 2009 WL
4405802 (W.D. La. Dec. 2, 2009)(dismissed as frivolous and
for failure to state a claim upon which relief may be
granted). Because Smith has had three or more
“strikes” under § 1915(g), he may not
proceed in forma pauperis in this action.
must therefore pay both the $350.00 filing fee and the $50.00
administrative fee within twenty-eight days. Federal law
requires prisoners to pay the entire filing fee, 28 U.S.C.
§ 1915(a)(2), and Smith became liable for payment of
entire fee the moment he filed this action, McGore v.
Wrigglesworth, 114 F.3d 601, 605 (6th Cir.
1997)(“the Prison Litigation Act makes prisoners
responsible for their filing fees the moment the civil action
or appeal is filed.”). Collection of the fee is
therefore not merely appropriate, but is required by federal
statute. Smith v. Federal Bureau of Prisons, No.
11-332-KKC (E.D. Ky. 2011) (R.8 therein), aff'd,
No. 12-8997 (6th Cir. Nov. 8, 2012).
Court conducts a preliminary review of Smith's mandamus
petition because he asserts claims against government
officials. 28 U.S.C. §1915A. In such cases, a district
court must dismiss any action which (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief. Id. Because Smith is
proceeding without an attorney, the Court liberally construes
his claims and accepts his factual allegations as true.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
letter filed with the Court, Smith claims that he is
currently imprisoned by the Bureau of Prisons
(“BOP”) using a “decades old”
Pre-Sentence Investigation report (“PSI”)
“that is totally counterfeit after both Begay
and Johnson” (no further citation information
or explanation given). [R. 1]. Smith further states that he
was recently resentenced by “Justice Berger (Beckley
WVa)”for a term of 8 months for a violation of
supervised release “without a revamping of the ancient
PSI.” [R. 1]. Smith requests that this Court
“issue a mandamus to either Judge Berger or against the
BOP at this prison to remove me from maximum custody and to
make a part of the permanent BOP record this issuance so I
can proceed with a civil suit.” [R. 1]. Thus, Smith
essentially seeks to attack the sentence imposed by Judge
Berger in this Court.
Court will not reach the merits of the Smith's claims
because it does not have jurisdiction to do so. The All Writs
Act, whose source is the Judiciary Act of 1793, authorizes
this Court to issue a writ of mandamus. The statute states
that “[t]he 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.” 28 U.S.C. §
1651(a). However, 28 U.S.C. § 1651 is not an independent
grant of jurisdiction. A federal court may invoke this
statute only in aid of its otherwise established
jurisdiction. Green v. Nottingham, 90 F.3d 415 (10th
Cir. 1996). Smith points to no jurisdictional authority for
this Court to essentially reverse a sentencing decision made
by another United States District Court in another district.
Accordingly, his action must be dismissed.
true that 28 U.S.C. § 1361 grants district courts
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.” 28 U.S.C. § 1361. However, mandamus is
considered an “extraordinary remedy.” Mallard
v. United States Dist. Ct. for the S. Dist. of Iowa, 490
U.S. 296, 309 (1989). Therefore, “it is within a
court's discretion to refrain from issuing the writ even
when the requirements for mandamus are technically satisfied.
The availability of the writ ‘does not compel its
exercise.'” In re: Patenaude, 210 F.3d
135, 141 (3d Cir. 2000) (citations omitted).
existence of jurisdiction under section 1361 is inextricably
bound with the merits of whether a writ of mandamus should
issue; in order to establish either jurisdiction or
entitlement to the writ, a court must find that a duty is
owed to the plaintiff.” Carson v. U.S. Office of
Special Counsel, 633 F.3d 487, 491 (6th Cir.
2011)(quoting Maczko v. Joyce, 814 F.2d 308, 310
(6th Cir. 1987)). To find that a duty enforceable by mandamus
exists, the petitioner must show that (1) he has a clear
right to relief, (2) the respondent has a clear and
nondiscretionary duty to act, and (3) there is no other
adequate remedy available to compel performance of the duty.
Id. There is no “duty owed” to the
petitioner unless it is wholly non-discretionary, meaning
“plainly defined and peremptory.” Ryon v.
O'Neill, 894 F.3d 199, 205 (6th Cir. 1990).
"The general principle which governs proceedings by
mandamus is, that whatever can be done without the employment
of that extraordinary writ, may not be done with it. It lies
only when there is practically no other remedy." In
re NLO, Inc., 5 F.3d 154, 156 (6th Cir. 1993) (citing
Helstoski v. Meanor, 442 U.S. 500, 505 (1979) and
quoting Ex parte Rowland, 104 U.S. 604, 617 (1882)).
extent that Smith seeks to challenge the sentenced imposed by
Judge Berger, he has multiple other avenues potentially
available for relief, including the right to appeal his
sentence to the United States Court of Appeals for the Fourth
Circuit and/or the ability to seek habeas relief in the
appropriate court pursuant to 28 U.S.C. § 2255 or §
2241. However, "[m]andamus is not to be used to reverse
a decision made by a court in the exercise of legitimate
jurisdiction." In re Bankers Trust Co., 61 F.3d
465, 469 (6th Cir. 1995 (citing In re Aetna Cas. &
Sur. Co., 919 F.2d 1136, 1140 (6th Cir. 1990)(en banc)).
"Moreover, the petitioner has the burden of showing that
its right to the issuance of the writ is 'clear and
undisputable.'" Id. (quoting Federal
Deposit Ins. Corp. v. Ernst & Whinney, 921 F.2d 83,
86 (6th Cir. 1990)). Thus, Smith is unable to litigate what
amounts to either an appeal or a collateral attack on his
sentence herein. To permit him to proceed in this Court would
not only be an improper use of the writ but would also reward
the litigious petitioner for attempting to “game the
system” by filing a separate cause of action to bypass
the appellate procedure.
the dismissal of Smith's claims, Smith is not relieved of
his obligation to pay the $400.00 in fees and the Court will
order their collection from his inmate account. McGore v.
Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997),
abrogated on other grounds, Jones v. Bock, 549 U.S.
199 (2007)(“The dismissal of a complaint under §
1915(e)(2) or § 1915A does not negate a prisoner's
obligation to pay the filing fee in accordance with §
1915(b)(1)-(2)...Our mandate, however, does not prevent a
district court from making the fee assessment and conducting
the screening process in the same opinion or