Foster v. U.S. Department of Homeland Security

Filing 4

ORDER ENTERED: Petitioner is granted provisional leave to proceed in forma pauperis and is obligated to pay the $5.00 district court filing fee in this mandamus action. The petition for a writ of mandamus is denied. This civil action constitut es a "strike" for purposes of 28 U.S.C. 1915(g). Petitioner's motion 3 for appointment of counsel is denied as moot. Signed by Senior District Judge Sam A. Crow on 10/25/2011. (Mailed to pro se party Rory Foster by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RORY FORSTER,
Petitioner,
v.

CASE NO. 11-3163-SAC

U.S. DEPARTMENT OF HOMELAND
SECURITY,
Respondent.

O R D E R
This matter comes before the court on a pleading titled as a
petition for writ of mandamus.

Petitioner is incarcerated in

Kansas, serving a state sentence for his conviction on charges of
first

degree

aggravated
sodomy.1

murder,

kidnapping,

aggravated
criminal

arson,

threat,

aggravated
rape,

and

battery,
aggravated

Petitioner proceeds pro se and seeks leave to proceed in

forma pauperis without prepayment of the $5.00 district court filing
fee for this mandamus action.
In Forma Pauperis
Because the mandamus relief being sought does not relate to the
disposition of a pending habeas action, petitioner's payment of the
$5.00 district court filing fee is subject to the filing fee
provisions

in

28

U.S.C.

§

1915(b)

Litigation Reform Act (PLRA) in 1996.2
1

2

as

amended

by

the

Prison

Pursuant to the PLRA, when

See State v. Foster, 290 Kan. 696 (2010).

Compare York v. Terrell, 2009 WL 2219276 (10th Cir.2009)
(unpublished)(mandamus action on claims interrelated to a habeas
action was not “a civil action” as contemplated by 28 U.S.C. §

a prisoner brings a civil action in forma pauperis, the court is to
assess an initial partial filing fee of 20 percent of the greater of
the average monthly deposits to the prisoner’s account or the
average monthly balance in the prisoner’s account, for the six month
period preceding the filing of the complaint or appeal.
§ 1915(b)(1).

28 U.S.C.

Assessment of the initial partial filing fee in the

present case is based on petitioner’s average monthly deposit of
$29.41.

Twenty percent of that average deposit exceeds the $5.00

filing fee required, thus petitioner is obligated to pay the full
$5.00 district court fee.

See 28 U.S.C. § 1915(b)(3)(“In no event

shall the filing fee collected exceed the amount of fees permitted
by statute for the commencement of a civil action or an appeal of a
civil action or criminal judgment.”).
Mandamus
Petitioner cites a pending Immigration and Customs Enforcement
(ICE) detainer for his deportation, and states the detainer has been
extended to the Wichita Detention and Removal Operations (DRO)
Office in Wichita.

Petitioner asks the federal court to “encourage

the Wichita sub-office of ICE/DRO to complete [his] Deportation and
Removal from the United States.”
Petitioner cites 28 U.S.C. § 1361 which grants a United States
District court 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."3

28

1915(b) for application of the filing fee requirements imposed by
PLRA); In re Phillips, 133 F.3d 770 (10th Cir.1998).
3

Petitioner also cites the Kansas mandamus statute, K.S.A. 60801, but that state statute provides no jurisdiction or legal basis
for relief in federal court.
2

U.S.C. § 1361.

To be entitled to mandamus relief, plaintiff must

establish that his claim is "clear and certain," that the duty owed
is "ministerial and so plainly prescribed as to be free from doubt,"
and that no other adequate remedy is available.

Johnson v. Rogers,

917 F.2d 1283, 1285 (10th Cir.1990).
Petitioner maintains his deportation pursuant to a November 12,
2009, deportation detainer is “overdue,” but as the court explained
in

dismissing

petitioner’s

previous

action,4

the

timing

of

petitioner’s deportation rests within the discretion of the United
States Attorney General while petitioner is serving his state
sentence.

Thus petitioner presents no factual or legal basis for

the mandamus relief being sought.
But more significantly, as previously explained to petitioner,
this court has no jurisdiction in habeas corpus or mandamus “to hear
any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien...”
8 U.S.C. § 1252(g).
The petition is thereby denied as frivolous and as failing to
state a claim for the relief being sought.

Petitioner is advised

that this civil action constitutes a “strike” for purposes of the 3strike provision in 28 U.S.C. § 1915(g).5

See Green v. Nottingham,

4

Petitioner previously submitted a “Petition to Initiate
Deportation,” Case No. 10-3148-SAC, which the court liberally
construed as seeking habeas corpus relief, and dismissed without
prejudice for lack of jurisdiction.
5

See 28 U.S.C. 1915(g)(a “3-strike” provision prevents a
prisoner from proceeding in forma pauperis in bringing a civil
action or appeal if “on 3 or more prior occasions, while
incarcerated or detained in any facility, [the prisoner] brought an
action or appeal in a court of the United States that was dismissed
3

90 F.3d 415, 418 (10th Cir.1996)(mandamus petition qualifies as
“civil action” under § 1915(g)).
IT IS THEREFORE ORDERED that petitioner is granted provisional
leave to proceed in forma pauperis, and is obligated to pay the
$5.00 district court filing fee in this mandamus action.
IT IS FURTHER ORDERED that the petition for a writ of mandamus
is denied, and that this civil action constitutes a “strike” for
purposes of 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that petitioner’s motion for appointment
of counsel (Doc. 3) is denied as moot.
IT IS SO ORDERED.
DATED:

This 25th day of October 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.”).
4