SMITH v. STATE BOARD OF PARDONS AND PAROLES et al

Filing 6

ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis; DENYING 1 Motion for Writ of Mandamus; and, DENYING as moot 5 Motion Immediate Release. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 7/7/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
STEVEN E. SMITH,

:
:
Petitioner,
:
:
VS.
:
:
STATE BOARD OF PARDONS AND
:
PAROLES, WARDEN DONALD
:
BARROW, and ALBERT R. MURRAY, :
:
Respondents.
:
_________________________________

CIVIL NO. 5:14-CV-179-MTT

WRIT OF MANDAMUS

ORDER
Petitioner Steven E. Smith has filed a Petition for a Writ of Mandamus in this
Court. (Doc. 1.) Petitioner has also filed a motion to proceed in forma pauperis. (Doc.
2.) For purposes of dismissal only, Petitioner’s motion to proceed without the
prepayment of the filing fee is hereby GRANTED. This does not mean that the filing fee
is waived. Plaintiff is still required to eventually pay the full amount of the $350.00 filing
fee using the payment plan described in 28 U.S.C. § 1915(b). The filing fee is not
refundable, regardless of the outcome of Plaintiff’s case, and Plaintiff is responsible for
paying the entire filing fee even if his lawsuit is dismissed prior to service.
The Eleventh Circuit has held that “[t]he remedy of mandamus is a drastic one, to
be invoked only in extraordinary situations. The party seeking mandamus has the
burden of demonstrating that its right to issuance of the writ is clear and indisputable.”
United States v. Uribe, 486 F. App’x 823, 824 (11th Cir. 2012) (citations and quotations
omitted). A writ of mandamus should only be issued when (1) the plaintiff has a clear
right to the relief requested; (2) the defendant has a clear duty to act; and (3) no other

adequate remedy is available. Davis v. U.S., --- F. App’x ---, 2014 WL 889616, **1 (11th
Cir. 2014) (citation and internal quotation omitted).
Because the Petitioner is filing his Motion in the federal district court, his use of
mandamus is limited. Title 28, United States Code § 1361 states that “[t]he 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.” (Emphasis added.) Federal courts have no jurisdiction to issue
writs of mandamus directing a state court and its judicial officers in the performance of
their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb Cnty.
Sup. Ct, 474 F.2d 1275, 1276 (5th Cir.1973).1
Petitioner, who is serving a fifteen year sentence for convictions of voluntary
manslaughter and possession of a firearm by a convicted felon, seeks a writ of
mandamus directing the Respondents to grant him parole. (Pet. For Writ of Mandamus
1; Doc. 1.) Specifically, Petitioner contends that his sentence length has been
computed in error, and he requests that he be immediately transferred to a “transitional
center program/training in the metro Atlanta or Columbus area and upon completion of
program be released on parole.” (Id. at 3.)
Petitioner’s claims fail to state a legitimate basis for mandamus relief under 28
U.S.C. § 1361. First, Petitioner’s request fails to establish any duty owed to him by any
federal agency or employee. As stated above, the Court has no jurisdiction to compel a
state court or its judicial officers to act. Petitioner was convicted in the Bibb County

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
rendered prior to October 1, 1981.
2

Superior Court and is currently under the control of the Georgia Department of
Corrections. Furthermore, Petitioner fails to allege any duty owed to him which would
require the Court to compel intervention on his behalf. As such, Petitioner’s Petition for
A Writ of Mandamus must fail.
ACCORDINGLY, it is hereby ORDERED that Petitioner’s Motion for Mandamus
relief be DENIED and this case dismissed.
Petitioner has also filed what the Court construes to be a motion seeking
immediate release from prison on parole. (Doc. 5.) Because the Court is denying
Petitioner’s petition for mandamus relief, Petitioner’s motion for release is DENIED as
MOOT.
SO ORDERED, this the 7th day of July, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
lws

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