MYRIECKES v. ZICKEFOOSE

Filing 4

OPINION. Signed by Judge Renee Marie Bumb on 7/14/2011. (bdk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ERIC MYRIECKES,
Petitioner,
v.
DONNA ZICKEFOOSE,
Respondent.

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Civil No. 10-5118 (RMB)
O P I N I O N

APPEARANCES:
Eric Myrieckes, Pro Se
#11013-068
Federal Correctional Institution
P.O. Box 1000
Cumberland, MD 21501

BUMB, District Judge
Petitioner, Eric Myrieckes, confined at the Federal
Correctional Institution (“FCI”), Fort Dix, New Jersey, at the
time he filed this petition, seeks to bring this “Action to
Compel An Officer of the United States to Perform Duties,” and
asserts violations of his constitutional rights.

Approximately

fifteen days after filing his petition, Petitioner filed a letter
with the Court notifying the Court that he was scheduled to be
transferred to a different prison.

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One month after that, he

filed a notice of address change with the Court.
Petitioner has filed neither an application to proceed in
forma pauperis, nor the $350.00 filing fee.

For this reason, his

petition must be administratively terminated for failure to pay
the filing fee or to apply to proceed in forma pauperis.
Petitioner may submit the fee or in forma pauperis application,
which will be provided by the Court, to have his action
reopened.1 However, the Court adds the following, concerning the
1

A prisoner bringing a civil action in forma pauperis must
submit an affidavit, including a statement of all assets, which
states that the prisoner is unable to pay the fee. 28 U.S.C. §
1915(a)(1). The prisoner also must submit a certified copy of
his inmate trust fund account statement for the 6-month period
immediately preceding the filing of his complaint. 28 U.S.C. §
1915(a)(2). The prisoner must obtain this statement from the
appropriate official of each prison at which he was or is
confined. See id.
Even if the prisoner is granted in forma pauperis status,
the prisoner must pay the full amount of the $350 filing fee.
See 28 U.S.C. § 1915(b)(1). In each month that the amount in
the prisoner’s account exceeds $10.00, until the $350.00 filing
fee is paid, the agency having custody of the prisoner shall
assess, deduct from the prisoner’s account, and forward to the
Clerk of the Court payment equal to 20% of the preceding month’s
income credited to the prisoner’s account. 28 U.S.C. §
1915(b)(2).
Petitioner may not have known when he submitted his petition
that he must pay the filing fee, and that even if the full filing
fee, or any part of it, has been paid, the Court must dismiss the
case if it finds that the action is: (1) frivolous or malicious;
(2) fails to state a claim upon which relief may be granted; or
(3) seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B). If the Court dismisses
the case for any of these reasons, the prisoner will not get his
filing fee back.
Finally, Petitioner should know that if he has, on three or
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merits of the petition.
BACKGROUND
Petitioner seeks a writ of mandamus compelling respondent
Zickefoose, the warden of the FCI Fort Dix to act.

Petitioner

complains that while housed in the Special Housing Unit (“SHU”)
at FCI Fort Dix, his constitutional rights are violated because
of limitations placed on purchasing certain items.

He asks this

Court to direct Respondent to allow him:
... access to purchase safety pens and paper, or be
supplied a safety pen and enough paper to handle his
legal and family obligations. Petitioner seeks a
reasonable rotation and amount of time in the law
library with proper working equipment and a law clerk.
Petitioner seeks access to purchase regular envelopes
and legal envelopes or to be supplied them for his law
briefs. And all other reasonable remedies- attorney
call, family call, notary- and equal protection under
the law.
Petition, ¶ 11.
DISCUSSION
A petition for writ of mandamus is subject to screening
pursuant to 28 U.S.C. § 1915A to determine whether it should be
dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted, or because it seeks monetary
relief from a defendant who is immune from such relief.

See,

more prior occasions while incarcerated, brought an action or
appeal in a court that was dismissed on any of the grounds listed
above, he cannot bring another action in forma pauperis unless he
is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
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e.g., Martin v. Grimshaw, 198 F.3d 248 (Table), 1999 WL 1021705
(6th Cir. 1999) (mandamus action under § 1631 is a “civil action”
for purposes of Prison Litigation Reform Act); In re Nagy, 89
F.3d 115, 116 (2d Cir. 1996) (PLRA applies to mandamus petitions
that seek relief analogous to civil rights complaints).

In this

case, Petitioner has not submitted the $350.00 filing fee, or a
request to proceed in forma pauperis.

Therefore, his case must

be administratively terminated.
Alternatively, for the reasons set forth below, the Court
concludes that the mandamus petition is otherwise subject to
dismissal.

See Thompson v. Sheriff of Broward County, 2007 WL

419352 (S.D. Fla. Feb. 5, 2007) (collecting cases). Cf. Madden v.
Myers, 102 F.3d 74, 76-66 n.2 (3d Cir. 1996) (declining to decide
whether PLRA applies to § 1361 mandamus petitions) with Franco v.
Bureau of Prisons, 207 Fed. Appx. 145, 2006 WL 3521880 (3d Cir.
2006) (affirming district court dismissal under 28 U.S.C. §
1915(e)(2) of motion for § 1361 writ of mandamus against Bureau
of Prisons, and dismissing appeal under § 1915(e)(2)(B)).
1.

Mootness

Petitioner has not asked for monetary relief.

Thus,

Petitioner’s transfer to another facility renders his claims
moot.

Federal courts are not empowered to decide moot issues.

See U.S. CONST. art. III, § 2, cl. 1.; Doe v. Delie, 257 F.3d 309,
313 (3d Cir. 2001)(citing North Carolina v. Rice, 404 U.S. 244,

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246 (1971)).

To avoid mootness, a controversy must exist at all

stages of review.

See id. (citing New Jersey Turnpike Auth. V.

Jersey Central Power & Light, 772 F.2d 25, 31 (3d Cir. 1985)).
"Mootness has two aspects:

(1) the issues presented are no

longer ‘live’ or (2) the parties lack a cognizable interest in
the outcome."
at 31).

Id. (quoting New Jersey Turnpike Auth., 772 F.2d

In the instant case, as Petitioner does not seek

monetary relief, he cannot be afforded the relief he seeks due to
his transfer to another facility.

Thus, the issues are no longer

"live" and a controversy no longer exists, and the petition is
subject to dismissal as moot.
2.

Mandamus

Pursuant to 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.”
Mandamus, however, is an extraordinary remedy.
Ringer, 466 U.S. 602, 616 (1984).
before mandamus relief is granted.

See Heckler v.

Certain conditions must be met
“Among these are that the

party seeking issuance of the writ have no other adequate means
to attain the relief he desires, and that he satisfy ‘the burden
of showing that (his) right to issuance of the writ is clear and
indisputable.’”

Kerr v. United States District Court, 426 U.S.

394, 403 (1976) (citations omitted).

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Thus, mandamus is available

to Petitioner here only if he shows that he has a clear right to
the relief sought, that the Respondent has a clear duty to
perform, and that no other adequate remedy is available.
Petitioner cannot meet this standard.

Specifically,

Petitioner cannot demonstrate that no other adequate remedy is
available.

Petitioner’s complaints in his mandamus petition deal

with the conditions of his confinement in the SHU, in particular,
his inability to acquire materials to access the courts.

Federal

prisoners asserting such claims may file a complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971). Under Bivens, the Supreme
Court held that one is entitled to recover monetary damages for
injuries suffered as a result of federal officials’ violations of
the Fourth Amendment.

In doing so, the Supreme Court created a

new tort as it applied to federal officers, and a federal
counterpart to the remedy created by 42 U.S.C. § 1983.

In order

to state a claim under Bivens, a claimant must show (1) a
deprivation of a right secured by the Constitution and laws of
the United States; and (2) that the deprivation of the right was
caused by an official acting under color of federal law.2
2

See

Bivens actions are analogous to suits under 42 U.S.C. §
1983 against state officials who violate federal constitutional
or statutory rights. The two bodies of law are not "precisely
parallel;" however, there is a "general trend" to incorporate §
1983 law into Bivens suits. See Egervary v. Rooney, 80 F. Supp.
2d 491 (E.D. Pa. 2000) (citing Chin v. Bowen, 833 F.2d 21, 24 (2d
Cir. 1987)).
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Mahoney v. Nat’l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.
1987)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56
(1978)).
Therefore, because Petitioner had an adequate remedy under
Bivens, his petition for a writ of mandamus is subject to
dismissal.

3.

Merits

Finally, it appears that Petitioner’s petition is unlikely
to withstand sua sponte screening on its merits.

First, although

Petitioner complains that he is not adequately supplied with what
he needs to access the courts, Petitioner does admit that he is
provided two envelopes once a week, four sheets of paper, 30-45
minutes in the law library at a time, and a typewriter, albeit,
in less that desirable condition.

While photocopy requests are

delayed, Petitioner was able, or “forced,” as he puts it, to mail
out his civil action (“without the proper number of copies to the
court”).

(Petition, ¶ 10).

In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme
Court held that "the fundamental constitutional right of access
to the courts requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate

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assistance from persons trained in the law."
to the courts is not, however, unlimited.

The right of access

"The tools [that

Bounds] requires to be provided are those that the inmates need
in order to attack their sentences, directly or collaterally, and
in order to challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of
conviction and incarceration."

Lewis v. Casey, 518 U.S. 343, 355

(1996) (emphasis in original).
Moreover, a prisoner alleging a violation of his right of
access must show that prison officials caused him past or
imminent "actual injury."

See Lewis, 518 U.S. at 348-55 and n.3

(1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997).
Here, Petitioner has not shown actual injury, or his
inability to file any legal actions to attack his sentence or
challenge the conditions of his confinement.

Therefore, he has

not alleged facts indicating an access to courts violation.

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CONCLUSION
Accordingly, for the reasons set forth above, the petition
must be administratively terminated for failure to pay the filing
fee.

Moreover, this Court’s review of the petition reveals that

his request for a writ of mandamus is also subject to dismissal.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: July 14, 2011

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