Ellison v. Kennelly et al
Filing
10
ORDER DISMISSING CASE with prejudice for failure to state a claim upon which relief may be granted due to lack of subject matter jurisdiction, and as a sanction for Plaintiff's failure to inform the Court of his litigation history. Plaintiff is ADVISED that this dismissal shall count as one of his "allotted strikes" under the provisions of 28 U.S.C. § 1915(g). It is hereby ORDERED that Plaintiff's motion for leave to proceed IFP in this case (Doc. 3 ) is DENIED. It is FURTHER ORDERED that Plaintiff shall pay the full filing fee of $350.00 for this action within twenty-one (21) days of the date of entry of this Order. Plaintiff is ADVISED that failure to pay the $350.00 filing fee by the prescribed deadline will likely result in Plaintiff being barred from filing any new papers in this Court until such time as he has paid to the Clerk of Court the filing fee for this action in full. (Action due by 5/17/2013). Signed by Judge G. Patrick Murphy on 4/26/2013. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENNIE K. ELLISON, No. R-00575,
Plaintiff,
vs.
MATHEW KENNELLY,
JEFFREY COLE,
DENLOW,
GERALDINE S. BROWN,
SAMUEL YEGHIAYAN,
NORGEL,
GPTTSCHALL,
BILL MCDADE,
MICHAEL M. MILLER,
BAUER,
TINDER,
HAMILTON,
EVANS,
SYKES,
ANNE WILLIAMS,
FRANK H. EASTERBROOK,
Defendants.
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CIVIL NO. 13-107-GPM
MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff Bennie K. Ellison is currently incarcerated at Stateville Correctional Center.
Ellison, proceeding pro se, has filed an “Emergency Federal Petition of Mandamus for Sua
Sponte Orders” in this district court, aimed at seven federal judges in the Northern District of
Illinois, two judges in the Central District of Illinois and seven judges in the Seventh Circuit
Page 1 of 7
Court of Appeals (Doc. 1).1 Ellison has also filed a motion for leave to proceed in forma
pauperis, pursuant to 28 U.S.C. 1915 (Doc. 3).
In essence, Ellison wants this Court to order the judges of its sister district courts and
judges of the superior appellate court to “perform their federal duties” and grant Ellison the relief
he seeks in three cases: Ellison v. Pfister, No. 12-cv-1356 (C.D. Ill. Sept. 14, 2012) (a prison
civil rights action); Ellison v. Godinez, No. 12-cv-1363 (C.D. Ill. Sept. 14, 2012) (a prison civil
rights action); and Ellison v. Cook County Sheriff, No. 12-1613 (7th Cir. Mar. 15, 2012) (the
appeal of No. 10-cv-2088 (N.D. Ill. Nov. 28, 2011) (a civil rights action pertaining to when
Ellison was a pretrial detainee)). From Ellison’s perspective, if all of various judges perform
their duties as they should, he is entitled to immediate release and $3,000,000, plus interest from
the Cook County Sheriff’s Department.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint. Accepting Plaintiff’s allegations as true, the Court finds that this action is subject
to summary dismissal for the following reasons.
Subject Matter Jurisdiction
The writ of mandamus has been abolished. See Fed.R.Civ.P. 81(b). Nevertheless, there
are two federal statutes that a party may invoke to obtain a writ of mandamus: 28 U.S.C. § 1361
and 28 U.S.C. § 1651. Ellison has not specified a basis for his action.
1
In November 2012, Ellison, who was then housed at Lawrence Correctional Center in the
Southern District of Illinois, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. §
2254 challenging his 2010 state conviction for manufacturing and possessing a controlled
substance. Ellison v. Godinez, No. 12-cv-01186-DRH (S.D. Ill. Nov. 19, 2012). When Ellison
was transferred to Stateville Correctional Center in December 2012, his case was transferred to
the District Court for the Northern District of Illinois. The instant petition for mandamus was
initially submitted to the Clerk of Court in the Northern District, who transmitted it to this
district for filing (consistent with the caption of the pleading and certificate of service).
Page 2 of 7
Section 1361, titled “Action to compel an officer of the United States to perform his
duty,” provides: “The 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.” This statute has been construed as inapplicable to the
federal courts. Trackwell v. U.S. Gov't, 472 F.3d 1242, 1245 (10th Cir. 2007); Smith v. Krieger,
643 F.Supp.2d 1274, 1281 (D. Colo. 2009). Trackwell and Smith both relied upon Hubbard v.
United States, 514 U.S. 695, 699 (1995), in which the Supreme Court stated that the federal
courts were not referred to as departments or agencies—terms reserved for components of the
Executive Branch. See also Liberation News Service v. Eastland, 426 F.2d 1379, 1384 (2d Cir.
1970) (applying the same interpretation to identical language in 28 U.S.C. § 1391(e)).
Section 1651(a) provides: “The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” Unlike Section 1361, Section 1651 is only a
mechanism by which the Court asserts its jurisdiction, it is not a source of jurisdiction. United
States v. Illinois Bell Telephone Co., 531 F.2d 809, 814 (7th Cir. 1976).
This type of writ of mandamus “has traditionally been used in the federal courts only to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so.” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402
(1976) (internal citations and quotations omitted and emphasis added).
A petitioner seeking
mandamus must show that (1) no other adequate means exist to attain the desired relief, (2) his
right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the
circumstances of his case. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-381 (2004). Plaintiff
cannot meet this test.
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This Court cannot direct the Court of Appeals for the Seventh Circuit because that is a
superior court. Furthermore, a writ of mandamus “must not be used as a mere substitute for
appeal.” 16 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3932, at
185 (2nd ed. 1996). See also Helstoski v. Meanor, 442 U.S. 500, 506 (1979) (addressing the
narrow scope of a writ of mandamus in a criminal proceeding). Neither can this Court direct its
sister district courts, which are of equal stature. Rather, Plaintiff Ellison’s remedy lies in an
appeal. Consequently, this Court lacks subject matter jurisdiction over this action and it must be
dismissed.
Dismissal for lack of subject matter jurisdiction in a situation such as this, where the
assertion of jurisdiction is frivolous, constitutes as “strike” for purposes of 28 U.S.C. § 1915(g).
See Okoro v. Bohman, 164 F.3d 1059, 1063 (7th Cir. 1999).
Pauper Status
In Martin v. United States, 96 F.3d 853, 854 (7th Cir. 1996), the Court of Appeals for the
Seventh Circuit concluded that a petition for mandamus in civil litigation falls within the scope
of the Prison Litigation Reform Act of 1996 (“PLRA”), Pub.L. 104-134, Title VIII, 110
Stat.1321.2 Plaintiff specifies that this is a petition for a writ of mandamus, which falls within
the ambit of 28 U.S.C. §§ 1361 and 1651; therefore the PLRA is applicable.
The PLRA precludes a prisoner from bringing a civil action in forma pauperis if at least
three of the inmate’s prior lawsuits have been dismissed as frivolous, malicious, or for failing to
state a claim on which relief may be granted. 28 U.S.C. § 1915(g). An exception exists—when
a prisoner is in danger of serious injury—which does not apply here. See Turley v. Gaetz, 625
F.3d 1005, 1006-1009 (7th Cir. 2010).
2
In Walker v. O’Brien, 216 F.3d 626, 633-637 (7th Cir. 2000), 28 U.S.C. §§ 2241, 2254 and
2255 were found to be beyond the reach of the PLRA.
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The Court notes that Plaintiff has already had far more than three other cases dismissed
as frivolous or for failure to state a claim upon which relief may be granted—not counting the
strike assessed in this present action. See Ellison v. Illinois, No. 07-cv- 2296 (N.D. Ill. Nov. 9,
2007); Ellison v. Sheriff of Cook County, No. 09-cv-5438 (N.D. Ill. Feb. 2, 2010); and Ellison v.
United States Judicial Committee of District Court, No. 11-cv-1764 (N.D. Ill. March 22, 2011);
Ellison v. U.S. Judicial Exec & Adm. Operations of the Dist. Court, No. 11-cv-1764 (N.D.Ill.
March 22, 2011); Ellison v. Manion, No. 11-cv- 2600 (N.D. Apr. 26, 2011); Ellison v. Joyce, No.
11-2722 (N.D. Ill. May 23, 2011); and Ellison v. IDOC, No. 11-cv- 6296 (N.D. Ill. Sept. 19,
2011). In fact, after Plaintiff filed 18 cases in the District Court for the Northern District of
Illinois, that district banned Plaintiff from filing any new civil cases pro se, and set up a
repository for any future filings. In the Matter of Bennie Ellison, No. 12-cv-7536 (N.D. Ill. Sept.
14, 2012). Consequently, his motion for leave to proceed as a pauper (Doc. 3) is denied.
Because Plaintiff has “struck out” under Section 1915(g), he may not bring another action
in federal court, so long as he remains a prisoner, unless he pays the full filing fee in advance, or
he is in imminent danger of immediate physical injury. Furthermore, because Plaintiff did not
disclose his litigation history to the Court, this action is subject to immediate dismissal. See
Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir. 2011); Ammons v. Gerlinger, 547 F.3d 724, 725
(7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-859 (7th Cir. 1999).
Plaintiff’s obligation to pay the filing fee for this action was incurred at the time the
action was filed, thus the filing fee of $350 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Pending Motion
Plaintiff’s pending motion for appointment of counsel and “special federal investigators”
(Doc. 4) is MOOT.
Page 5 of 7
Disposition
For the reasons stated above, this action is DISMISSED with prejudice for failure to
state a claim upon which relief may be granted due to lack of subject matter jurisdiction, and as a
sanction for Plaintiff’s failure to inform the Court of his litigation history.
Plaintiff is ADVISED that this dismissal shall count as one of his “allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee for this
action was incurred at the time the action was filed, thus the filing fee of $350 remains due and
payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Accordingly, it is hereby ORDERED that Plaintiff’s motion for leave to proceed IFP in
this case (Doc. 3) is DENIED. It is FURTHER ORDERED that Plaintiff shall pay the full
filing fee of $350.00 for this action within twenty-one (21) days of the date of entry of this
Order.
Plaintiff is ADVISED that failure to pay the $350.00 filing fee by the prescribed deadline
will likely result in Plaintiff being barred from filing any new papers in this Court until such time
as he has paid to the Clerk of Court the filing fee for this action in full. See Ammons v.
Gerlinger, 547 F.3d 724, 726 (7th Cir. 2008) (citing Newlin v. Helman, 123 F.3d 429, 436–437
(7th Cir.1997)); United States ex rel. Verdone v. Circuit Ct. for Taylor County, 73 F.3d 669,
674–675 (7th Cir. 1995); Support Sys. Int'l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir.1985).
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk informed
of any change in his address, and that the Court will not independently investigate his
whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or
other change in address occurs. Failure to comply with this order will cause a delay in the
transmission of court documents.
Page 6 of 7
Plaintiff’s pending motion for appointment of counsel and “special federal investigators”
(Doc. 4) is terminated as MOOT. The Clerk of Court shall CLOSE THIS CASE and enter
judgment accordingly.
IT IS SO ORDERED.
DATED: April 26, 2013
s/ ZA ctàÜ|v~ `âÜÑ{ç
G. PATRICK MURPHY
United States District Judge
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