Morgan v. Baldwin et al
Filing
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MEMORANDUM AND ORDER DISMISSING CASE: IT IS HEREBY ORDERED that the petition (Doc. 1) is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Morgan is ADVISED that this dismissal shall count as one of his allotted strikes within the meaning of 28 U.S.C. § 1915(g). IT IS ALSO ORDERED that Morgans obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $400.00 remains due and payable. The Clerk is directed to CLOSE THIS CASE and enter judgment accordingly. Signed by Judge David R. Herndon on 7/25/2017. (tkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANK MORGAN,
# C-15189,
Petitioner,
vs.
JOHN BALDWIN and
JACQUELINE A. LASHBROOK,
Respondents.
Case No. 17-cv-730-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Frank Morgan, an inmate who is currently incarcerated in
Menard Correctional Center (“Menard”), brings this pro se action seeking a writ of
mandamus pursuant to 735 Illinois Compiled Statutes 5/14-101 et seq. (Docs. 1,
1-1). Morgan claims that respondents failed to timely respond to his request for
production of documents made pursuant to the Illinois Freedom of Information
Act.
(Doc. 1-1).
He now seeks a writ of mandamus compelling a response.
(Docs. 1, 1-1).
The case is before the Court for review pursuant to 28 U.S.C. § 1915A,
which provides:
(a) Screening – The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
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(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. After considering the allegations in the petition and accepting
them as true, the Court concludes that this action is subject to summary
dismissal.
The Petition
Morgan seeks an order compelling John Baldwin (Illinois Department of
Corrections Director) and Jacqueline Lashbrook (Menard’s warden) to respond to
his request to produce documents pursuant to the Illinois Freedom of
Information Act (“FOIA”). (Doc. 1, pp. 1-21; Doc. 1-1). Morgan did not provide
the Court with a copy of his FOIA request(s) or describe the contents of the
request(s) in his petition.
Id.
However, it appears that he seeks a formal
response to grievances he filed to challenge adverse disciplinary decisions.
Morgan filed several grievances as exhibits to the petition. (Doc. 1, p. 4-12). In
each, he challenged adverse disciplinary rulings on Fourteenth Amendment
grounds. Id. He also included a letter from Menard’s Grievance Office, which
explains that Morgan filed his grievances through the wrong channels. (Doc. 1, p.
13).
Instead of using the prison’s internal grievance procedure, Morgan
submitted them as FOIA requests. Id. As a result, the Grievance Office indicates
that it did not receive or respond to the grievances. Id.
Discussion
This Court cannot provide plaintiff with the relief he now seeks.
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Mandamus is an extraordinary remedy. Burnett v. Bowen, 830 F.2d 731, 739
(7th Cir. 1987). It is only appropriate under limited circumstances. Id. In the
absence of proper jurisdiction, the Court lacks power to grant any relief at all.
The writ of mandamus has been abolished.
See FED. R. CIV. P. 81(b).
However, two federal statutes are typically invoked to obtain mandamus relief,
i.e., 28 U.S.C. § 1361 and 28 U.S.C. § 1651. Morgan referred to neither in his
petition.
The case was opened under § 1361, which grants district courts “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.”
28 U.S.C. § 1361.
In the petition, Morgan does not pursue relief
against an “officer or employee of the United States or any agency thereof.” Id. He
pursues mandamus relief against two state officials under Illinois law. (Docs. 1,
1-1). Federal courts have no authority to grant mandamus relief against state
officials.
Harrell v. Unknown Party, No. 14-cv-00752-MJR (S.D. Ill. July 22,
2014); Robinson v. Illinois, 752 F. Supp. 248, 248-49 (N.D. Ill. 1990) (citing
28 U.S.C. § 1361) (“Federal courts have no general power to compel action by
state officers[.]”). Therefore, this Court cannot order Director Baldwin or Warden
Lashbrook, two state officials, to produce a response to plaintiff’s FOIA request
under § 1361.
Section 1651 is commonly referred to as the “All Writs Act.” 28 U.S.C.
§ 1651. It provides: “The Supreme Court and all courts established by Act of
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Congress may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” Id. (emphasis
added). Section 1651 is not a source of jurisdiction, but rather a mechanism by
which the Court asserts its jurisdiction. United States v. Illinois Bell Telephone
Co., 531 F.2d 809, 814 (7th Cir. 1976).
Neither statute vests this Court with jurisdiction to issue an order
compelling the two state officials named in the Petition to fulfill their duties under
state law. See Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 469
(7th Cir. 1988); see also Banks v. People of the State of Illinois, 258 F. App’x 902
(7th Cir. 2007). Whether relief is available to Morgan in state court is beyond the
scope of this Order.
Had Morgan filed this case pursuant to 42 U.S.C. § 1983, he would have
fared no better. A plaintiff seeking relief under § 1983 must allege the deprivation
of federal or constitutional law. The only potential federal violation referred to in
the Petition is a Fourteenth Amendment due process violation that allegedly
resulted from the delay in processing Morgan’s FOIA requests. Morgan did not
provide the Court with a copy of his FOIA requests.
However, his exhibits
indicate that Morgan challenged one or more adverse disciplinary decisions by
filing grievances pursuant to FOIA. (Doc. 1, p. 13). The Grievance Office pointed
out this error in a memo dated June 22, 2017. Id. Rather than resubmit his
grievances on the proper forms through the correct channels, Morgan filed the
instant petition.
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Even if the Grievance Office improperly handled Morgan’s grievances, he
has no federal claim against them (or against respondents). Standing alone, the
mishandling of an inmate’s grievances does not give rise to an independent
Fourteenth Amendment due process claim. See Antonelli v. Sheahan, 81 F.3d
1422, 1430 (7th Cir. 1996).
The Constitution requires no procedure at all.
Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d
1091, 1100-01 (7th Cir. 1982). Therefore, the failure of state prison officials to
follow their own procedures does not, of itself, violate the Constitution.
Id.
Moreover, “[t]he federal government is not the enforcer of state law.” Pasiewicz v.
Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 536 (7th Cir. 2001). Morgan is
not entitled to any relief in federal court.
This action shall be dismissed with prejudice. The dismissal falls within
the grounds enumerated in 28 U.S.C. § 1915A(b) and shall therefore result in the
assessment of another “strike.” However, this Order does not preclude Morgan
from pursuing relief in Illinois state court.
Filing Fee
Morgan filed this action without prepaying the $400.00 filing fee or filing a
properly completed motion for leave to proceed in forma pauperis (“IFP Motion”).
He has been instructed by the Clerk of this Court to do one or the other by August
21, 2017. (Doc. 2). However, review of Morgan’s litigation history on the Public
Access to Court Electronic Records (“PACER”) website (www.pacer.gov) reveals
that he has “struck out” by filing three or more prior federal civil actions as a
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prisoner that were dismissed as frivolous, malicious, or for failure to state a claim
upon which relief may be granted. See Morgan v. DeTella, No. 97 C 1632 (N.D.
Ill. dismissed April 11, 1997); Morgan v. Phoenix, No. 01 C 0025 (S.D. Ill.
dismissed January 29, 2003); Morgan v. Spiller, No. 09 C 161 (S.D. Ill. dismissed
December 7, 2009).
Under the circumstances, Morgan is ineligible to proceed IFP, unless his
petition demonstrates that he faces imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
mandamus action.
Morgan must clear this hurdle, even though he filed a
See Bruce v. Samuels, -- U.S. --, 136 S. Ct. 627 (2016)
(assumes without deciding that a mandamus petition qualifies as a “civil action”
or “appeal” for purposes of 28 U.S.C. § 1915(b)). See also Green v. Nottingham,
09 F.3d 415, 417-18 (10th Cir. 1996) (prisoners should not be allowed to evade
Prison Litigation Reform Act provisions by framing pleading as petition for
mandamus). The petition, which is described in detail above, does not suggest
that Morgan faces imminent danger of serious physical injury. (Docs. 1, 1-1).
Therefore, he is ineligible to proceed IFP.
The $400.00 filing fee obligation
stands.
Disposition
IT IS HEREBY ORDERED that the petition (Doc. 1) is DISMISSED with
prejudice for failure to state a claim upon which relief may be granted.
Morgan is ADVISED that this dismissal shall count as one of his allotted
“strikes” within the meaning of 28 U.S.C. § 1915(g).
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IT IS ALSO ORDERED that Morgan’s obligation to pay the filing fee for
this action was incurred at the time the action was filed, thus the filing fee of
$400.00 remains due and payable.
See 28 U.S.C. § 1915(b)(1); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
If petitioner wishes to appeal this dismissal, his notice of appeal must be
filed with this Court within thirty days of the entry of judgment. FED. R. APP. P.
4(a)(1)(A). If petitioner does choose to appeal, he will be liable for the $505.00
appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. P.
3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th
Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.
Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). Moreover, because petitioner has
“struck out” and has not shown that he is in imminent danger of serious physical
injury, this Court will not grant him permission to proceed in forma pauperis on
appeal. Finally, if the appeal is found to be nonmeritorious, Petitioner may also
incur another “strike.” A proper and timely motion filed pursuant to Federal Rule
of Civil Procedure 59(e) may toll the 30-day appeal deadline.
FED. R. APP. P.
4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28) days
after the entry of the judgment, and this 28-day deadline cannot be extended.
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The Clerk is directed to CLOSE THIS CASE and enter judgment
accordingly.
Digitally signed by
Judge David R. Herndon
Date: 2017.07.25
13:30:01 -05'00'
IT IS SO ORDERED.
DATED: July 25, 2017
United States District Court
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