Filing 4

MEMORANDUM OPINION. Signed by Judge John D. Bates on 6/28/2010. (kb)

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n UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FILED JUN 30 2010 Clerk Gregory T. Howard, Plaintiff, v. United States District Court for the District of Columbia and District Judge Colleen Kollar-Kotelly, Defendants. ) ) ) ) ) ) ) ) ) ) ) Us o· Bankr· .strict and Uptcy Courts Civil Action No. It 111.1 MEMORANDUM OPINION This matter is before the Court on review of plaintiff s pro se complaint and application to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint upon a determination that it is frivolous, malicious or fails to state a claim upon which relief can be granted. 28 U.S.c. § 1915(e)(2)(B)(i)-(ii). The Court will dismiss this case on all three grounds. Plaintiff is a resident of Toledo, Ohio. He seeks the issuance of a writ of mandamus against United States District Judge Kollar-Kotelly ofthis Court to compel her to vacate the dismissal order issued on March 30, 2009 in Howard v. United States District Court for the Southern District of Ohio, Civ. Action No. 09-531 (CKK) ("Howard I"), and to transfer that case to the Southern District of Ohio. The complaint fails to state a claim because the mandamus statute applies to "officer[s] or employee[s] of the United States or any agency thereof[,]" 28 U.S.C. § 1361, as to "matters arising in the executive branch and its administrative agencies." Seltzer v. Foley, 502 F. Supp. 600, 602 n.2 (S.D.N.Y. 1980). The complaint is frivolous because the docket of Howard I, which plaintiff has attached to the current complaint, shows that Judge Kollar-Kotelly dismissed the case for lack of subject matter jurisdiction, denied plaintiffs various post-judgment motions, see Minute Order of May 21, 2009, and most recently denied plaintiff s Rule 60(b) motion seeking the same relief sought in this case and his motion to appeal in forma pauperis. See Order of April 16, 2010 [Dkt. No. 24]. In addition, the Howard I docket shows that on July 10, 2009, the United States Court of Appeals for the District of Columbia Circuit summarily affirmed Judge Kollar-Kotelly's dismissal order, see Dkt. No. 17 (Mandate of USCA), and plaintiff has attached to the current complaint the D.C. Circuit's most recent order denying his motion to proceed there in forma pauperis because "[t]he district court correctly certified that the appeal [from the Rule 60(b) denial] is not taken in good faith." PI.' sEx. 7. A complaint may be dismissed as frivolous when, as here, "there is indisputably absent any factual and legal basis for the asserted wrong." Brandon v. District of Columbia Bd. of Parole, 734 F.2d 56, 59 (D.C. Cir. 1984). The complaint is malicious because in Howard I, plaintiff was told more than once that he had no further recourse in this Court and was effectively barred from filing any more postjudgment motions. See Order of April 16, 2010. Yet, plaintiff persists in beating a dead horse by filing a new action based on decidedly frivolous issues. See Schwarz v. us. Dep '/ of Treasury, 131 F. Supp. 2d 142, 148 (D.D.C. 2000) (warning that "[a]ny further attempt to litigate [repetitive] claim[ s] is [] subject to dismissal as malicious"). For the foregoing reasons, the complaint will be dismissed with prejudice. A separate Order accompanies this Memorandum Opinion. United Date: June-V f , 2010 2

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