Thomas v. Burns

Filing 5

MEMORANDUM AND ORDER that the Petition for Writ of Mandamus (Filing No. 1 ) is dismissed. The court will enter judgment by a separate document. Petitioner's Motion for Leave to Proceed in Forma Pauperis (Filing No. 2 ) is denied as moot. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN PAUL THOMAS,
Petitioner,
v.
STEVEN BURNS,
Respondent.

)
)
)
)
)
)
)
)
)

4:16CV3014

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Petitioner’s Petition for Writ
of Mandamus (Filing No. 1). Petitioner seeks leave to proceed in forma pauperis in
this action and so the court conducts this initial review pursuant to 28 U.S.C. § 1915
(e)(2) (requiring the court to dismiss an action filed in forma pauperis if the court
determines that the action is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant who is immune from
such relief). For the reasons set forth below, the court will dismiss this action for lack
of jurisdiction and because the petition fails to state a claim on which relief may be
granted.
I. SUMMARY OF PETITION
Petitioner brings this action seeking a writ of mandamus against Judge Steven
Burns, a state district court judge in Lancaster County, Nebraska. Petitioner claims
Judge Burns is presiding over Petitioner’s divorce and child custody proceedings.
Judge Burns calculated the amount of child support Petitioner was to pay based on the
assumption that Petitioner was capable of full-time employment. Petitioner claims he
is not capable of full-time employment, and “was awarded disability” from the Social
Security Administration in 2004. He seeks an order requiring Judge Burns to “issue
a new Order that complies with state and federal laws in his calculations of
Petitioner’s child support.” (Filing No. 1 at CM/ECF p. 4.)

II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim on which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
III. DISCUSSION
A federal district court is authorized to issue writs of mandamus or other
extraordinary writs only in aid of its jurisdiction, either existing or potential. See 28
U.S.C. § 1651(a); Middlebrooks v. Thirteenth Judicial Dist. Circuit Court, Union
Cnty., 323 F.2d 485, 486 (8th Cir. 1963).
The actions of the named respondent in the instant case are not within the
jurisdiction of this court. See Middlebrooks, 323 F.2d at 486. Specifically, this court
has no authority to compel action by state officers, including state judicial officers.
See, e.g., Veneri v. Circuit Court of Gasconade Cnty., 528 F.Supp. 496, 498 (E. D.
Mo. 1981) (“[I]t is well settled that federal courts have no superintending control over
and are without authority to issue writs of mandamus to direct state courts or their
judicial officers in the performance of their duties.”). Accordingly, the court will
2

dismiss the petition for lack of jurisdiction and for failure to state a claim on which
relief may be granted.
IT IS THEREFORE ORDERED that:
1.
The Petition for Writ of Mandamus (Filing No. 1) is dismissed. The
court will enter judgment by a separate document.
2.
Petitioner’s Motion for Leave to Proceed in Forma Pauperis (Filing No.
2) is denied as moot.
DATED this 8th day of February, 2016.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

3