Adkins v. Brownback et al

Filing 3

ORDER ENTERED: Petitioner's motion 2 for leave to proceed in forma pauperis is granted. The petition is dismissed. Signed by Senior District Judge Sam A. Crow on 9/25/2012. (Mailed to pro se party Ebrahim Adkins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EBRAHIM ADKINS,
Petitioner,
v.

CASE NO. 12-3194-SAC

SAM BROWNBACK, et al.,
Respondents.

O R D E R
This matter comes before the court on pro se document titled as
seeking a writ of mandamus for declaratory and injunctive relief, as
well as damages, on allegations apparently related to petitioner’s
state court conviction.
Petitioner also seeks leave to proceed in forma pauperis.

The

court grants this motion based upon petitioner’s limited financial
resources.

Because petitioner is no longer a “prisoner” as defined

by 28 U.S.C. § 1915(h), 1 the fee provisions imposed by the Prison
Litigation Reform Act in 1996 do not apply.
While the petition is not clear, it appears petitioner is
alleging misconduct by current and former state and county officials,
judges, and employees concerning petitioner’s state conviction and
petitioner’s service of his sentence.
Social
1

Security

disability

status

Petitioner also cites his
as

barring

application

of

The Kansas Department of Corrections discharged petitioner in September 2008
upon expiration of his state sentence. Petitioner does not identify or reference
any subsequent or current confinement by any other authority on pending or resolved
criminal charges.

unspecified limitation periods, and seeks a court mandate of clemency.
Under 28 U.S.C. ' 1361, Adistrict 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 federal statute

authorizing action in nature of mandamus applies only to officers or
employees of United States or any agency thereof, and does not
authorize federal court to issue writs of mandamus to state officials
or agencies.
All respondents named by petitioner in the present case are
current and former officials and employees of the State of Kansas.
Because petitioner does not seek mandamus relief from an “officer or
employee of the United States or any agency thereof,” the petition
is clearly deficient.

See Amisub (PSL), Inc. v. State of Colo. Dept.

of Social Services, 879 F.2d 789, 790 (10th Cir.1989)(“No relief
against state officials or state agencies is afforded by § 1361.”).
Accordingly, the petition is dismissed as a legally frivolous action
over which this court lacks jurisdiction.

See Sockey v. Gray, 159

F. Appx. 821, 822 (10th Cir.2005)(holding federal courts are without
jurisdiction to grant a writ of mandamus against state and local
officials);

cf.

Craigo

v.

Hey,

624

F.Supp.

414

(S.D.W.Va.1985)(petition for writ of mandamus seeking to compel state
court to schedule a case for trial is dismissed sua sponte for lack
of federal jurisdiction and as legally frivolous).
To the extent this pro se action can be liberally construed as
seeking something other than federal mandamus relief as titled and
argued by petitioner, it is dismissed as frivolous and abusive, as

seeking damages barred by the Eleventh Amendment and judicial
immunity, and as stating no cognizable claim under federal law.

28

U.S.C. § 1915(e)(2)(B).
IT IS THEREFORE ORDERED that the petitioner’s motion for leave
to proceed in forma pauperis (Doc. 2) is granted, and that the petition
is dismissed.
IT IS SO ORDERED.
DATED:

This 25th day of September 2012 at Topeka, Kansas.

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