Smith v. United States Bureau of Prisons
MEMORANDUM OPINION & ORDER: 1. Smith's Petition for a Writ of Mandamus 1 is DENIED, and this matter is STRICKEN from active docket. 2. All other pending requests for relief are DENIED AS MOOT. 3. Smith is ORDERED to pay the $350 filing fee for a civil action and $50.00 administrative fee. 4. Clerk shall open an account in Smith's name for receipt of filing fee. Clerk shall complete a Notice of Payment Form. Clerk send a copy of this Order and Notice of Payment Form to warden and U.S. Attorney for EDKY. 5. Smith's custodian shall send Clerk a payment 20% of his income, until entire $350 filing fee is paid. 6. JUDGMENT shall be entered contemporaneously with this MO&O in favor of respondent. Signed by Judge Karen K. Caldwell on 7/28/2017. (RCB)cc: COR, Finance, Smith, Warden & USA w/EDKY525
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
JAMES PRESTON SMITH,
Civil Action No. 7:17-cv-124-KKC
UNITED STATES BUREAU OF PRISONS,
*** *** *** ***
James Preston Smith, an inmate confined at the United States Penitentiary – Hazelton in
Bruceton Mills, West Virginia, has sent a letter to the Court seeking a writ of mandamus. [R. 1].
Seven days after filing his initial letter, Smith filed a second letter seeking to have this case
consolidated with another civil action he states he filed in the United States District Court in
Beckley, West Virginia. [R. 2]. Smith has not paid the $350.00 filing fee and the $50.00
administrative fee or filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
Ordinarily, a district court may permit a prisoner to pay the $350.00 filing fee in
installments upon appropriate motion. 28 U.S.C. § 1915(b). But 28 U.S.C. § 1915(g) requires the
prisoner to pay the filing fee in full at the outset of the case if the prisoner has, while in custody,
filed three or more civil cases or appeals in federal court which were dismissed as frivolous or for
failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g).
A court may take judicial notice of undisputed information contained on government
websites, Demis v. Sniezek, 558 F. 3d 508, 513 n.2 (6th Cir. 2009), and may consider such
information when determining whether a claim must be dismissed for failure to state a claim,
Lovelace v. Software Spectrum, Inc., 78 F. 3d 1015, 1017-18 (5th Cir. 1996). Smith has previously
been found by this Court to be an abusive litigator. Smith v. Farley, et al., No. 7:14-102-ART
(E.D. Ky. 2014). Indeed, the federal courts’ online PACER database establishes that Smith has
quite a litigious history, as he is named as plaintiff or petitioner in over 60 civil cases. Smith has
previously been enjoined from filing any actions in the United States District Court for the
Southern District of West Virginia without the representation of an attorney without prior
permission from the Court or unless he has paid the required filing fee in full. Smith v. Hayden, et
al., No. 5:05-cv-884 at R. 37 (S.D. W.Va. June 2, 2009).
Smith has had three or more prisoner civil rights actions dismissed as frivolous or for
failure to state a claim upon which relief may be granted. See id. at R. 25 (describing Smith’s
litigation history as of February 3, 2009). See also Smith v. Menefee, 1:09-CV-00034, 2009 WL
4405802 (W.D. La. Dec. 2, 2009)(dismissed as frivolous and for failure to state a claim upon which
relief may be granted). Because Smith has had three or more “strikes” under § 1915(g), he may
not proceed in forma pauperis in this action.
Smith must therefore pay both the $350.00 filing fee and the $50.00 administrative fee
within twenty-eight days. Federal law requires prisoners to pay the entire filing fee, 28 U.S.C.
§ 1915(a)(2), and Smith became liable for payment of entire fee the moment he filed this action,
McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997)(“the Prison Litigation Act makes
prisoners responsible for their filing fees the moment the civil action or appeal is filed.”).
Collection of the fee is therefore not merely appropriate, but is required by federal statute. Smith
v. Federal Bureau of Prisons, No. 11-332-KKC (E.D. Ky. 2011) (R.8 therein), aff’d, No. 12-8997
(6th Cir. Nov. 8, 2012).
The Court conducts a preliminary review of Smith's mandamus petition because he asserts
claims against government officials. 28 U.S.C. §1915A. In such cases, a district court must dismiss
any action which (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Id.
Because Smith is proceeding without an attorney, the Court liberally construes his claims and
accepts his factual allegations as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
In his letter filed with the Court, Smith claims that he is currently imprisoned by the Bureau
of Prisons (“BOP”) using a “decades old” Pre-Sentence Investigation report (“PSI”) “that is totally
counterfeit after both Begay and Johnson” (no further citation information or explanation given).
[R. 1]. Smith further states that he was recently resentenced by “Justice Berger (Beckley WVa)”1
for a term of 8 months for a violation of supervised release “without a revamping of the ancient
PSI.” [R. 1]. Smith requests that this Court “issue a mandamus to either Judge Berger or against
the BOP at this prison to remove me from maximum custody and to make a part of the permanent
BOP record this issuance so I can proceed with a civil suit.” [R. 1]. Thus, Smith essentially seeks
to attack the sentence imposed by Judge Berger in this Court.
This Court will not reach the merits of the Smith’s claims because it does not have
jurisdiction to do so. The All Writs Act, whose source is the Judiciary Act of 1793, authorizes this
Court to issue a writ of mandamus. The statute states that “[t]he Supreme Court and all courts
established by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
However, 28 U.S.C. § 1651 is not an independent grant of jurisdiction. A federal court may invoke
this statute only in aid of its otherwise established jurisdiction. Green v. Nottingham, 90 F.3d 415
Presumably, the references to “Justice Berger” and “Judge Berger” refer to the Honorable Irene C. Berger, United
States District Judge for the Southern District of West Virginia. According to the Sentence Monitoring Computation
Data sheet submitted by Petitioner, he was sentenced by Judge Berger in May 2017. [R. 1-1].
(10th Cir. 1996). Smith points to no jurisdictional authority for this Court to essentially reverse a
sentencing decision made by another United States District Court in another district. Accordingly,
his action must be dismissed.
It is true that 28 U.S.C. § 1361 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. However, mandamus is
considered an “extraordinary remedy.” Mallard v. United States Dist. Ct. for the S. Dist. of Iowa,
490 U.S. 296, 309 (1989). Therefore, “it is within a court's discretion to refrain from issuing the
writ even when the requirements for mandamus are technically satisfied. The availability of the
writ ‘does not compel its exercise.’” In re: Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citations
“The existence of jurisdiction under section 1361 is inextricably bound with the merits of
whether a writ of mandamus should issue; in order to establish either jurisdiction or entitlement to
the writ, a court must find that a duty is owed to the plaintiff.” Carson v. U.S. Office of Special
Counsel, 633 F.3d 487, 491 (6th Cir. 2011)(quoting Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir.
1987)). To find that a duty enforceable by mandamus exists, the petitioner must show that (1) he
has a clear right to relief, (2) the respondent has a clear and nondiscretionary duty to act, and (3)
there is no other adequate remedy available to compel performance of the duty. Id. There is no
“duty owed” to the petitioner unless it is wholly non-discretionary, meaning “plainly defined and
peremptory.” Ryon v. O'Neill, 894 F.3d 199, 205 (6th Cir. 1990). "The general principle which
governs proceedings by mandamus is, that whatever can be done without the employment of that
extraordinary writ, may not be done with it. It lies only when there is practically no other remedy."
In re NLO, Inc., 5 F.3d 154, 156 (6th Cir. 1993) (citing Helstoski v. Meanor, 442 U.S. 500, 505
(1979) and quoting Ex parte Rowland, 104 U.S. 604, 617 (1882)).
To the extent that Smith seeks to challenge the sentenced imposed by Judge Berger, he has
multiple other avenues potentially available for relief, including the right to appeal his sentence to
the United States Court of Appeals for the Fourth Circuit and/or the ability to seek habeas relief in
the appropriate court pursuant to 28 U.S.C. § 2255 or § 2241. However, "[m]andamus is not to be
used to reverse a decision made by a court in the exercise of legitimate jurisdiction." In re Bankers
Trust Co., 61 F.3d 465, 469 (6th Cir. 1995 (citing In re Aetna Cas. & Sur. Co., 919 F.2d 1136,
1140 (6th Cir. 1990)(en banc)). "Moreover, the petitioner has the burden of showing that its right
to the issuance of the writ is 'clear and undisputable.'" Id. (quoting Federal Deposit Ins. Corp. v.
Ernst & Whinney, 921 F.2d 83, 86 (6th Cir. 1990)). Thus, Smith is unable to litigate what amounts
to either an appeal or a collateral attack on his sentence herein. To permit him to proceed in this
Court would not only be an improper use of the writ but would also reward the litigious petitioner
for attempting to “game the system” by filing a separate cause of action to bypass the appellate
Notwithstanding the dismissal of Smith’s claims, Smith is not relieved of his obligation to
pay the $400.00 in fees and the Court will order their collection from his inmate account. McGore
v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997), abrogated on other grounds, Jones v. Bock,
549 U.S. 199 (2007)(“The dismissal of a complaint under § 1915(e)(2) or § 1915A does not negate
a prisoner's obligation to pay the filing fee in accordance with § 1915(b)(1)-(2)...Our mandate,
however, does not prevent a district court from making the fee assessment and conducting the
screening process in the same opinion or order.”)(citation omitted). The collection of the full fee
is particularly warranted here, given Smith’s prior history as an abusive litigator and the complete
lack of merit of his claims in this case.
Accordingly, for all of the foregoing reasons, IT IS ORDERED that:
Smith’s Petition for a Writ of Mandamus [R. 1] is DENIED, and this matter is
STRICKEN from the active docket.
All other pending requests for relief are DENIED AS MOOT.
Smith is ORDERED to pay the $350 filing fee for a civil action and the $50.00
The Clerk of the Court shall open an account in Smith’s name for receipt of the
filing fee. The Clerk shall complete a Notice of Payment Form (Form EDKy 525) with (a) Smith’s
name, (b) his inmate registration number, and (c) this case number. The Clerk shall send a copy
of this Order and the Notice of Payment Form to the warden of the institution in which Smith is
currently confined and to the United States Attorney for the Eastern District of Kentucky.
Each month Smith’s custodian shall send the Clerk of the Court a payment in an
amount equal to 20% of his income for the preceding month out of his inmate trust fund account,
but only if the amount in the account exceeds $10. The custodian shall continue such monthly
payments until the entire $350 filing fee is paid. 28 U.S.C. § 1915(b)(2).
JUDGMENT shall be entered contemporaneously with this Memorandum Opinion
and Order in favor of the respondent.
Dated July 28, 2017.
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