Westine v. Hollingsworth et al

Filing 4

MEMORANDUM AND ORDER denying 2 Motion for Leave to Proceed in forma pauperis. The petition for mandamus is denied for failure to state a claim for relief. Signed by District Judge Richard D. Rogers on 6/10/2011. Mailed to pro se party John G. Westine by regular mail. (ms)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JOHN G. WESTINE, Petitioner, CIVIL ACTION No. 11-3093-RDR vs. (FNU) HOLLINGSWORTH, et al., Respondents. MEMORANDUM AND ORDER This matter comes before the court on a petition for mandamus filed pursuant to 28 U.S.C. § 1651. Petitioner has submitted a motion for leave to proceed in forma pauperis and certified financial records. The court has considered the record and denies leave to proceed in forma pauperis. Petitioner is a federal prisoner in segregated housing. He seeks mandamus relief to obtain Kosher meals and Kiddish supplies. The description of the meals provided in petitioner’s affidavit (Doc. 3) suggests petitioner believes the meals are inadequate. He also states he has not received Kiddish supplies, although he does not elaborate on these items or his efforts to obtain them. The writ of mandamus is “a drastic remedy, available only in extraordinary circumstances. Furthermore, the writ is not available when review by other means is possible.” W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993). Here, the record does not support a finding of extraordinary circumstances. Likewise, petitioner has an administrative remedy available through the Bureau of Prisons, see 28 C.F.R. §§ 542.10 - 542.19, and, if that remedy is not adequate, he may proceed under Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 833 (1971). The court therefore concludes the present matter fails to state a claim for mandamus relief.1 IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion for leave to proceed in forma pauperis (Doc. 2) is denied. IT IS FURTHER ORDERED the petition for mandamus is denied for failure to state a claim for relief. A copy of this order shall be transmitted to the petitioner. 1 The court advises petitioner that the “three strikes” provision of 28 U.S.C. § 1915(g) applies to mandamus actions. See Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir.1997). 2 IT IS SO ORDERED. Dated at Topeka, Kansas, this 10th day of June, 2011. S/ Richard D. Rogers RICHARD D. ROGERS United States Senior District Judge 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?