Oliver v. City of Pooler et al

Filing 56

USCA ORDER: Motion to proceed in forma pauperis filed by Petitioner Anthony Oliver is DENIED in appeal number 19-10011. (jrb)

Case: 19-10011

Date Filed: 02/11/2019

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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith
Clerk of Court

For rules and forms visit
www.ca11.uscourts.gov

February 11, 2019
Anthony Oliver
PO BOX 847
POOLER, GA 31322
Appeal Number: 19-10011-F
Case Style: In re: Anthony Oliver
District Court Docket No: 4:18-cv-00100-WTM-JEG
Enclosed is the court's order denying your motion for leave to proceed with this matter in forma
pauperis. Unless you forward the docketing fee to this office, as required by 28 U.S.C. §
subsection 1913 and Fed.R.App.P. 21, within fourteen (14) days from this date, this petition will
be dismissed pursuant to 11th Cir. R. 42-1(b).
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Dionne S. Young, F
Phone #: [phone]

Case: 19-10011

Date Filed: 02/11/2019

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 19-10011-F

In re:

ANTHONY OLIVER,
Petitioner.

On Petitions for Writ of Mandamus from the
United States District Court for the

Southern District of Georgia

ORDER:

Anthony Oliver, a private citizen proceeding pro se, petitions this Court for a writ of
mandamus arising out of his 42 U.S.C. § 1983 civil-rights complaint, which is pending in the
Southern District of Georgia. He also moves for leave to proceed informa pauperis ("IFP"). In

his mandamus petition, Oliver asks that this Court direct the district court to: (l)rule on the
motions that he filed in his § 1983 action, and (2)stay his litigation pending resolution of his

motions. Liberally construing his mandamus petition, Oliver appears to argue that the district
court has unreasonably delayed in ruling on his motions. After filing his mandamus petition in
this Court,a magistratejudge issued a Report and Recommendation("R&R"),recommending that
the district court deny Oliver's and the defendants' motions and impose the sanctions it had
imposed in his prior § 1983 action.

Oliver seeks to file this mandamus petition IFP pursuant to 28 U.S.C. § 1915(a). Section

1915(a) provides that a United States court may authorize the commencement of any proceeding,

without prepayment of fees, by a person who submits an affidavit that includes a statement of

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Date Filed: 02/11/2019

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assets that he possesses, and indicates that he is unable to pay such fees. This Court, however,
may dismiss an action at any time if it determines that the allegation of poverty is untrue or the

action or appeal is frivolous. 28 U.S.C. § 1915(e)(2). In this case, Oliver has attached an affidavit
of indigency indicating that he has no monthly income. He states that he has $13.47 in cash and

$0.00 in a bank account. He indicates that he has a 2018 Jeep Cherokee and that he has $1,139 in
total monthly expenses. Assuming, without deciding, that this satisfies § 1915(a)'s poverty
requirement, Oliver's IFP motion is nevertheless due to be denied, as his mandamus petition is
frivolous.

Mandamus is available "only in drastic situations, 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 omitted). The petitioner has

the burden ofshowing that he has no other avenue of relief, and that his right to relief is clear and
indisputable. Mallard v. United States Dist. Court,490 U.S. 296,309(1989). Mandamus may be

used to direct a district court to decide a pending case when there has been unreasonable delay in
rendering a decision. See Johnson v. Rogers,917 F.2d 1283, 1284(10th Cir. 1990)(holding that

a 14-month delay in ruling on a 28 U.S.C. § 2241 petition for no reason other than docket
congestion was impermissible).

Oliver has not presented a non-fnvolous claim of unreasonable delay by the district court

in ruling on his motions because roughly only four months elapsed between when Oliver filed his
latest motion, and when he filed his mandamus petition in this Court. See Johnson, 917 F.2d at
1284. Further,the district court has taken further substantive action in Oliver's § 1983 case, in the

form of the magistrate judge's R&R recommending that the district court deny Oliver's and the

defendants' motions and impose sanctions. This action suffices to preclude any present claim of

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Date Filed: 02/11/2019

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unreasonable delay. Accordingly, Oliver's IFP motion is hereby DENIED, as his mandamus
petition is frivolous.

STATE^IRCUIT JUDGE