Jones v. Dalton

Filing 10

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 6] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $10 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the petition is DENIED, and this action is DISMISSED. An Order of Dismissal will be filed separately. Signed by District Judge Catherine D. Perry on December 9, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MARCUS A. JONES,
Petitioner,
v.
WESLEY C. DALTON,
Respondent,

)
)
)
)
)
)
)
)
)

No. 2:15CV79 CDP

MEMORANDUM AND ORDER
Plaintiff, a prisoner seeking a petition for writ of mandamus, seeks leave to
proceed in forma pauperis. Having reviewed plaintiff’s financial information, the
Court assesses a partial initial filing fee of $10, which is twenty percent of his
average monthly deposit. See 28 U.S.C. § 1915(b).
Standard of Review
Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, the Court is
required to review each case for subject matter jurisdiction, and, if jurisdiction is
lacking, to dismiss the case.
The Petition
Petitioner seeks a writ of mandamus ordering respondent, a state court judge,
to grant his motion to suppress blood evidence in his trial for driving while
intoxicated and second degree murder. Missouri v. Jones, No. 13BB-CR00489-02

(Montgomery Circuit). He says a blood sample was taken from him without his
consent, and he believes his rights under the Fourth Amendment have been
violated. His case is set for trial on January 5, 2016. Id.
Discussion
The district courts may only issue writs of mandamus “in aid of their
jurisdictions . . .” 28 U.S.C.A. § 1651(a). They lack the power to issue writs of
mandamus compelling a state actor to act. See 28 U.S.C. § 1361 (“The district
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.”) (emphasis added). Therefore, the petition
must be dismissed for lack of jurisdiction.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [ECF No. 6] is GRANTED.
IT IS FURTHER ORDERED that the plaintiff must pay an initial filing
fee of $10 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to “Clerk, United States District Court,” and to
include upon it: (1) his name; (2) his prison registration number; (3) the case
number; and (4) that the remittance is for an original proceeding.

2

IT IS FURTHER ORDERED that the petition is DENIED, and this action
is DISMISSED.
An Order of Dismissal will be filed separately.
Dated this 9th day of December, 2015.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

3