REEVES v. WEIGLE

Filing 4

ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis and DISMISSING 1 Motion for Writ of Mandamus. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 10/8/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAVID REEVES,
Petitioner
VS.

Judge CHARLES H. WEIGLE,
Respondent
______________________________

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NO. 5:14-CV-0334-MTT-MSH

ORDER
Petitioner DAVID REEVES, a state prisoner currently confined at the Wheeler
Correctional Facility in Alamo, Georgia, has filed a pro se “Petition for Writ of Mandamus”
and has also moved for leave to proceed in forma pauperis (Doc. 2). The Court has
conducted a preliminary review of the Petition and finds that, even when liberally
construed, the pleading does not state a legitimate claim for mandamus relief. The
Petition for Writ of Mandamus is thus DISMISSED; and Petitioner’s Motion to Proceed in
forma pauperis shall be GRANTED only for the purpose of this dismissal.
STANDARD OF REVIEW
When conducting a preliminary screening of a pro se pleading, the district court
must accept all factual allegations in the pleading as true. Brown v. Johnson, 387 F.3d
1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this case, are also “held to
a less stringent standard than pleadings drafted by attorneys” and must be “liberally

construed” by the court. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). A prisoner’s pleading is, however, still subject to dismissal prior to service if the
court finds that the pleading –when viewed liberally and in the light most favorable to the
plaintiff – is frivolous or malicious, seeks relief from an immune defendant, or fails to state
a claim. See 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e).
DISCUSSION
Through the present action, Petitioner asks this Court to issue a writ of mandamus
requiring United States Magistrate Judge Charles H. Weigle to rule, immediately, on his
application for habeas relief and/or the motion to dismiss currently pending in that case,
Reeves v. Owens, 5:14-cv-048-WLS.
Petitioner is correct that “[u]nder 28 U.S.C. § 1361, otherwise known as The
Mandamus Act, the district court has original jurisdiction over a mandamus action ‘to
compel an officer or employee of the United States or any agency thereof to perform a
duty owed to the [petitioner].’” Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003)
(quoting 28 U.S.C. § 1361). This Court, however, does not have jurisdiction to issue the
writ Petitioner requests. The powers granted under 28 U.S.C. § 1361 extend only to
mandamus actions filed against officers and employees of the executive branch.
Trackwell v. U.S. Government, 472 F.3d 1242, 1246-47 (10th Cir. 2007). See also,
Liberation News Service v. Eastland, 426 F.2d 1379, (2nd Cir. 1970) (“in enacting § 1361
. . . , Congress was thinking solely in terms of the executive branch). The Act does not
grant a district court authority to issue writs against its judicial officers or other federal

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courts.1 Trackwell, 472 F.3d at 1246. This Court thus cannot compel action in a case
currently before another district court.
Even if the Court did have authority to compel the action requested, mandamus is
“an extraordinary remedy which should be utilized only in the clearest and most
compelling of cases.” Cash, 327 F.3d at 1257. It is available “only . . . when no other
adequate means are available to remedy a clear usurpation of power or abuse of
discretion.” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir. 1997)
(quotation marks and citation omitted). A petitioner must show that (1) he has “a clear
right to the relief requested”; (2) the government official “has a clear duty to act”; and (3)
“no other adequate remedy [is] available.” Cash, 327 F.3d at 1258 (quoting Jones v.
Alexander, 609 F.2d 778, 781 (5th Cir. 1980)).
In his request for mandamus, Petitioner contends that Judge Weigle has
unlawfully neglected to rule on his habeas application and the pending motion within the
thirty-day period prescribed by federal law. Petitioner, however, has no clear right to a
ruling on his habeas petition within in thirty days of filing.2 Although federal law does
require a swift, flexible, and summary determination of habeas claims, see 28 U.S.C. §
2243; Preiser v. Rodriguez, 411 U.S. 475, 495, 93 S.Ct. 1827, 1839, 36 L.Ed.2d 439
(1973), nothing in Petitioner’s pleading suggests that Judge Weigle has allowed his

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To the extent that mandamus may be issued against a judicial officer or court, that authority is only vested
in the appellate courts. A writ of mandamus can, for example, issue from an appellate court to direct the
district court to “correct a clear abuse of discretion or the failure to carry out a ministerial task.” See
Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1385 (11th Cir. 1998), cert. denied 525 U.S. 1019, 119
S.Ct. 545, 142 L.E.2d 453 (1998). “For a district court to issue a writ of mandamus against an equal or
higher court would be remarkable.” Trackwell, 472 F.3d at 1246.
2

Cases cited by Petitioner address rights guaranteed by the Speedy Trial Act, 18 U.S.C. § 3161. Speedy
trial restrictions apply only in criminal cases and thus have no application in a civil action for habeas relief.
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habeas case to languish; nor does there otherwise appear to have been any
unreasonable or abusive delay in the review of his habeas petition.3 See In re Williams,
408 F. App’x 561, 561 (3rd Cir. 2010) (holding that a delay of only a few months after
prisoner filed habeas petition did not constitute such undue delay as to warrant
mandamus relief); MacKenzie v. California Atty. Gen., CV 12–00432, 2013 WL 3872114,
at *3 (March 12, 2013) (“delays of four months or more in ruling on a ripe habeas
petition—and a full year in at least one case—did not rise to the level necessary to trigger
the extraordinary remedy of mandamus”) (citing Madden v. Myers, 102 F.3d 74, 79 (3d
Cir. 1996) (eight months of inaction on motions not sufficient to compel mandamus)).
Petitioner’s pleading thus does not state a claim for mandamus relief.
CONCLUSION
The Petition for Writ of Mandamus (Doc. 1) is accordingly DISMISSED.
SO ORDERED, this 8th day of October, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
jlr

3

A review of court records on the U.S. District Web PACER Docket Report shows that Petitioner filed a
habeas petition under 28 U.S.C. § 2241 on February 4, 2014. See Reeves v. Owens, 5:14-cv-048-WLS.
Service was ordered by the Magistrate Judge shortly thereafter, and the respondent was directed to file a
responsive pleading. Id. A motion to dismiss was then filed on May 12, 2014; Petitioner filed a response
on July 10, 2014 (after being granted a twenty-day extension); and the time for filing a reply expired on July
31, 2014. Id. The motion to dismiss had thus been ripe for review for less than 60 days at the time this
mandamus action was filed.
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