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)

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