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Bruce v. Denney

United States District Court, D. Kansas

February 24, 2014

DONALD DENNEY, et al., Defendants.


SAM A. CROW, Senior District Judge.

This pro se civil action was filed by a federal prisoner housed at the United States Penitentiary, Administrative Maximum Prison, Florence, Colorado ("ADX"). Having examined the materials filed, the court finds that the filing fee prerequisites have not been satisfied and the complaint is deficient in several ways. Mr. Bruce is given time to cure these deficiencies. If he fails to comply within the prescribed time this action may be dismissed without further notice.


The fees for filing a civil action in federal court[1] total $400.00 and consist of the statutory fee of $350.00 under 28 U.S.C. § 1914(a) plus an administrative fee of $50.00; or for one that is granted leave to proceed in forma pauperis the fee is $350.00. Mr. Bruce has neither paid the fee nor submitted a Motion to Proceed without Prepayment of Fees.[2] This action may not proceed until the filing fee is satisfied in one of these two ways. Plaintiff is given time to satisfy the filing fee. He is forewarned that if he fails to satisfy the fee as ordered within the prescribed time, this action may be dismissed without prejudice and without further notice.

Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees does not relieve him of the obligation to pay the full amount of the filing fee. Instead, it merely entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account as funds become available pursuant to 28 U.S.C. § 1915(b)(2).[3]


Plaintiff asserts that his rights under the Eighth Amendment's cruel and unusual punishment clause and the Fifth Amendment's due process clause are being violated along with his rights under the Americans with Disabilities Act (ADA). As factual support, plaintiff alleges as follows. He is mentally ill and has been diagnosed with schizophrenia, depression with psychotic features, and bi-polar disorder. He has a long history of suicide attempts. His mental health is deteriorating, and he has requested two psychotherapy sessions each week instead of per month. He has trouble focusing, concentrating and understanding "in the realm of education" and would like to obtain a GED. He has been assisted on a civil action by another prisoner at the ADX but is being denied communication with him and is not assisted by staff. Plaintiff claims that (1) he is being denied adequate care for his mental illness, (2) he is being discriminated against in that his special educational needs are not being met, (3) he is being denied access to his "jail house lawyer, " and (4) he has been denied a staff representative of his choice in disciplinary proceedings.

Plaintiff seeks injunctive relief in the form of orders requiring: that he be provided additional therapy sessions and full-time one-on-one educational tutoring, that he be allowed to communicate with his jail-house lawyer, that all his grievances on staff misconduct be investigated and referred to the Inspector General for action, that the law library computers be repaired, and that the Warden's practice of choosing plaintiff's staff representative be terminated.


Because Mr. Bruce is a prisoner suing government officials, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).


The mandamus statute, 28 U.S.C. § 1361, provides that "[t]he district court shall have 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." However, "mandamus is an extraordinary remedy that is granted only in the exercise of sound discretion." Miller v. French, 530 U.S. 327, 339 (2000); Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)(per curiam)("the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations."); West v. Spellings, 480 F.Supp.2d 213, 217 (D.D.C. 2007). To obtain mandamus relief, the plaintiff must show that he has a clear right to the relief sought, the defendant has a plainly defined and peremptory duty to perform the act in question, and no other adequate remedy is available. Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005); Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990)(For mandamus to issue, "[p]etitioner must show that his right to the writ is clear and indisputable.'"); s ee Heckler v. Ringer, 466 U.S. 602, 616 (1984)("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361... is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty."); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1236 (10th Cir. 2005); Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988); West, 480 F.Supp.2d at 217. "A plaintiff bears a heavy burden of showing that his right to a writ of mandamus is clear and indisputable.'" Id. ( citing In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)). Courts have no authority under the mandamus statute to order a government official to perform a discretionary duty. West, 480 F.Supp.2d at 217. When a decision is committed to the discretion of an agency official, a litigant generally will not have a clear and indisputable right to any particular result. See Daiflon, 449 U.S. at 36; Armstrong v. Cornish, 102 Fed.Appx. 118, 120 (10th Cir.)(unpublished), cert. denied, 543 U.S. 960 (2004).


Having examined all materials filed, the court finds that this action is subject to being dismissed as frivolous and for failure to state a claim. Gabriel v. U.S. Parole Com'n, 319 Fed.Appx. 742 (10th Cir. 2009)(unpublished)[4] (affirming dismissal of mandamus petition as frivolous under § 1915(e)(2)(B)); Fay v. U.S., 389 Fed.Appx. 802, 803-04 (10th Cir. 2010)(unpublished)(Action before district court and this appeal found to be frivolous and to count as strikes where appellant failed to demonstrate that he was entitled to the "extraordinary remedy" of a writ of mandamus.). Mr. Bruce asserts that this court has jurisdiction pursuant to "28-USC-1585 Court of International Trade" and "the Declaration of Independence of 1776." These assertions of jurisdiction are found to be frivolous as they are not supported with ...

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