Roudabush v. Mensah et al
OPINION. Signed by Judge Noel L. Hillman on 3/14/2016. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MENSAH, et al.,
JAMES L. ROUDABUSH, JR.,
Civ. No. 15-8110 (NLH)
James L. Roudabush, Jr., # R82038-083
Low Security Correctional Institution 1
P.O. Box 999
Butner, NC 27509
Petitioner Pro se
HILLMAN, District Judge
Petitioner James L. Roudabush, Jr., a prisoner confined at
the Federal Correctional Institution in Fort Dix, New Jersey,
filed this writ for mandamus under 28 U.S.C. § 1361, seeking the
return of his legal papers. (ECF No. 1).
This case was
Petitioner has failed to provide the Court with his new address
in violation of Local Civil Rule 10.1. See L.CIV.R. 10.1(a)
(“Counsel and/or unrepresented parties must advise the Court of
any change in their or their client’s address within seven days
of being apprised of such change by filing a notice of said
change with the Clerk.”). Nevertheless, the Court will direct
the Clerk of the Court to update Petitioner’s address to reflect
the return address on Petitioner’s most recent submission (ECF
initially filed with the United States District Court for the
Eastern District of Virginia.
Due to Petitioner’s failure to
satisfy the filing fee requirement, the case was dismissed
without prejudice to Petitioner’s right to resubmit the case.
(ECF No. 3).
Petitioner appealed, but then filed a motion to
reopen the instant case (ECF No. 10) and voluntarily dismissed
the appeal. (ECF No. 13).
The district court for the Eastern
District of Virginia granted Petitioner’s motion to reopen his
case and vacated its previous dismissal order and judgment. (ECF
Petitioner then filed an application to proceed in
forma pauperis (ECF No. 17) and an Amended Petition (ECF No.
17), which named two officials at FCI Fort Dix in New Jersey as
Accordingly, the district court for the Eastern
District of Virginia determined that it lacked personal
jurisdiction over the respondents, and the case was transferred
to this Court for review by a judicial officer. (ECF No. 18).
Pursuant to Local Civil Rule 54.3, the Clerk shall not be
required to enter any suit, file any paper, issue any process,
or render any other service for which a fee is prescribed,
unless the fee is paid in advance.
The entire fee to be paid in
advance of filing a civil complaint, including a petition for
writ of mandamus, is $400.
That fee includes a filing fee of
$350 plus an administrative fee of $50, for a total of $400.
Under certain circumstances, however, this Court may permit an
indigent party to proceed in forma pauperis.
Civil actions brought in forma pauperis are governed by 28
U.S.C. § 1915 and, ordinarily, the Prison Litigation Reform Act
of 1995, Pub. L No. 104–135, 110 Stat. 1321 (April 26, 1996)
(the “PLRA”), which amends 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring
a civil action or file an appeal in forma pauperis.
If the PLRA applies to this action, in order to proceed in
forma pauperis, Petitioner is required to submit an affidavit,
including a statement of all assets and liabilities, which
states that he is unable to pay the fee; as well as a certified
copy of his inmate trust fund account statement(s) for the sixmonth period immediately preceding the filing of his petition.
28 U.S.C. § 1915(a)(1), (2).
However, if the PLRA does not
apply to this action, Petitioner in this case need only file an
affidavit of poverty in support of his request for in forma
pauperis status. See Madden v. Myers, 102 F.3d 74, 78 (3d Cir.
1996) (“Where the PLRA applies, the petitioner must file an
affidavit of poverty, a six-month account statement, and a form
authorizing prison officials to withdraw money from his account;
where it does not, the petitioner need only file an affidavit of
A. Application of the PLRA to the instant case
Case law in the Third Circuit is not settled as to whether
the PLRA applies to a petition for a writ of mandamus filed
pursuant to 28 U.S.C. § 1361.
In Madden v. Myers, the Third
Circuit held that true or “bona fide” mandamus petitions cannot
be subject to the PLRA because they fall outside the plain
meaning of the PLRA. 102 F.3d 74, 78 (3d Cir. 1996) superseded
by rule on other grounds as noted in, In re Ordaz, 491 F. App'x
348, 2013 WL 142701 (3d Cir. Jan 14, 2013). 2
The Madden court
reached this conclusion by discussing the nature of a writ of
mandamus — concluding that it is a “procedural mechanism” and,
thus, is neither a “civil action” nor an “appeal” — and by
determining that a writ of mandamus is not the type of
litigation that Congress intended to curtail by implementing the
PLRA. Madden, 102 F.3d at 77-78.
However, the Madden court conducted this analysis in the
context of a writ of mandamus filed pursuant to 28 U.S.C. §
1651(a), and specifically declined to decide whether the same
logic applied to § 1361 petitions. See Madden, 102 F.3d at 77
n.2 (“Although the same considerations may apply, whether the
PLRA applies to § 1361 petitions is not before us, and
See In re Ordaz, 491 F. App'x 348 (3d Cir. 2013) (noting that
3d Cir. L.A.R. 24.1(c)(1997) altered the prisoner account
statement procedure described in footnote 6 of Madden).
therefore, we need not decide it at this time.”).
is no case law on point to provide this Court with a definitive
answer with respect to the petition at issue in this case, filed
pursuant to § 1361.
However, several district courts in this circuit have
applied the PLRA to petitions filed under § 1361. See, e.g.,
Hamani v. Dir. Fed. Bureau of Prisons, No. 11-2780, 2011 WL
2112306, at *1 (D.N.J. May 25, 2011) (collecting cases) (“This
action is a civil action governed by the PLRA.”); Keys v. Dep't
of Justice, No. 4:08-CV-02239, 2009 WL 648926, at *2 (M.D. Pa.
Mar. 10, 2009) (holding that the PLRA applies based on the plain
language of the statute).
Notably, the Third Circuit has
affirmed a district court’s sua sponte dismissal of a petition
for writ of mandamus under 28 U.S.C. § 1915(e)(2), a provision
of the PLRA which requires judicial screening of in forma
pauperis cases. See Franco v. Bureau of Prisons, 207 F. App'x
145, 146 (3d Cir. 2006); see also Jones v. Bock, 549 U.S. 199,
214, 127 S. Ct. 910, 920, 166 L. Ed. 2d 798 (2007) (“In the
PLRA, Congress added failure to state a claim and seeking
monetary relief from a defendant immune from such relief as
grounds for sua sponte dismissal of in forma pauperis cases, §
1915(e)(2)(B). . .”).
In Franco, the district court relied on a case from the
Court of Appeals for the Second Circuit in support of its
conclusion that the PLRA applied to the § 1361 petition for writ
of mandamus before it. See Franco v. Bureau of Prisons, No. 055077, 2006 WL 1207976, at *1 (D.N.J. Apr. 28, 2006) (citing In
re Nagy, 89 F.3d 115 (2d Cir. 1996)).
In In re Nagy, the Second
Circuit concluded that “the PLRA requirements apply to those
extraordinary writs that seek relief analogous to civil
complaints under 42 U.S.C. § 1983, but not to writs directed at
judges conducting criminal trials.” In re Nagy, 89 F.3d at 116.
Because the petition in In re Nagy was related to the judge
conducting the criminal trial, the appellate court concluded
that the requirements of the PLRA did not apply. Id.
Here, however, the pending petition under § 1361 does not
relate to a judge conducting a criminal trial.
Rather, it seeks
relief analogous to a civil complaint, i.e. specific action on
the part of the Bureau of Prisons.
Therefore, using the
standard set forth in In re Nagy — which has been utilized by
other courts in this district, see Hamani, No. 11-2780, 2011 WL
2112306, at *1, and the use of which has been approved of by the
Third Circuit, see Franco, 207 F. App'x at 146 — this Court
determines that the petition for writ of mandamus presently
before the court is subject to the requirements of the PLRA.
This conclusion is consistent with the reasoning set forth
As an initial matter, the petition at issue in
Madden was related to a pending habeas corpus action; whereas,
in this case, Petitioner seeks relief unrelated to any
underlying civil or criminal action. 3
Petitioner in this case asks this Court to compel the Bureau of
Prisons to take certain action, it appears to be precisely the
type of litigation that Congress indented to curtail through the
implementation of the PLRA. See Madden, 102 F.3d at 77 (“The
clear import of the PLRA is to curtail frivolous prison
litigation, namely that brought under 42 U.S.C. § 1983 and the
Federal Torts Claims Act.”).
For these reasons, this Court
determines that the PLRA does, in fact, apply to the instant
petition for writ of mandamus filed pursuant to 28 U.S.C. §
B. Petitioner’s In Forma Pauperis Application
As set forth above, the provisions of the PLRA apply to the
Title 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring
a civil action in forma pauperis.
However, 28 U.S.C. § 1915
The Court notes that, in the instant Petition, Petitioner seeks
the return of legal papers submitted in several cases he has
filed. While these legal papers are certainly a consequence of
the cases he filed, Petitioner does not ask this Court to grant
any relief related to those actions. In other words, Petitioner
does not ask this Court to grant the specific relief he has
asked for in those cases, or to order the courts deciding those
cases to reach a determination, or to take any other action
which would cause the instant Petition to serve as the type of
“procedural mechanism” contemplated in Madden. See Madden, 102
F.3d at 77.
also prohibits a prisoner from bringing a civil action in forma
pauperis, “if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
A prisoner’s entire action or appeal must be dismissed on
grounds enumerated in § 1915(g) to count as a “strike.” Byrd v.
Shannon, 715 F.3d 117, 125 (3d Cir. 2013); see also Ball v.
Famiglio, 726 F.3d 448 (3d Cir. 2013) cert. denied, 134 S. Ct.
1547, 188 L. Ed. 2d 565 (2014).
Moreover, a strike under §
1915(g) will accrue “only if the entire action or appeal is (1)
dismissed explicitly because it is ‘frivolous,’ ‘malicious,’ or
‘fails to state a claim’ or (2) dismissed pursuant to a
statutory provision or rule that is limited solely to dismissals
for such reasons, including (but not necessarily limited to) 28
U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or
Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Byrd,
175 F.3d at 126.
Dismissals for frivolousness of civil actions or appeals,
prior to the 1996 amendment of § 1915, count as “strikes” under
28 U.S.C. § 1915(g). See Keener v. Pennsylvania Bd. of Probation
& Parole, 128 F.3d 143, 144 (3d Cir. 1997).
under § 1915(g) can be accrued in actions or appeals where the
prisoner has prepaid the filing fee, as well as in actions or
appeals where the prisoner is proceeding in forma pauperis.
Byrd, 715 F.3d at 124.
While incarcerated, Petitioner in this case has had at
least three prior federal civil actions dismissed as frivolous
or malicious, or for failure to state a claim upon which relief
may be granted. See, e.g., Roudabush v. NRDC Equity Partners,
LLC, No. 12-29 NLH, 2012 WL 4033725, at *3 (D.N.J. Sept. 12,
2012) (dismissing complaint in its entirety for failure to state
a claim upon which relief may be granted); Roudabush v. Johnson,
No. 11-7444 RMB, 2012 WL 3550525, at *3 (D.N.J. Aug. 16, 2012)
(same); Roudabush v. United States, Civil Action No. 11-980
(RMB) (D.N.J. July 13, 2012); Roudabush v. Johnson, No.
705CV00691, 2006 WL 270020, at *2 n.3 (W.D. Va. Feb. 3, 2006)
(concluding that “Roudabush's allegations are either frivolous
or fail to state a claim upon which relief may be granted”).
A review of the electronic database for the United States
District Court for the District of New Jersey reveals that
Petitioner is a frequent litigator.
In an opinion denying
several, separate appeals filed by Petitioner, the Third Circuit
recently noted that Petitioner “has filed over 90 civil actions
and 30 appeals over the years, and he has ‘three strikes’ under
the Prison Litigation Reform Act (‘PLRA’).” Roudabush v. Warden
Fort DIX FCI, No. 15-3113, 2016 WL 684015, at *1 (3d Cir. Feb.
This Court again concludes that Petitioner has three
strikes under 28 U.S.C. § 1915(g). See Roudabush v. Hall, No.
15-7887 (NLH), 2016 WL 155040, at *2 (D.N.J. Jan. 12, 2016)
(“This Court likewise concludes that Plaintiff has three strikes
under 28 U.S.C. § 1915(g).”);see also Roudabush v. Bittinger,
No. 15-3185 (RMB), 2015 WL 4616869, at *1 (D.N.J. July 31, 2015)
(“The Court, however, finds that Plaintiff has three strikes
under the PLRA.”); Roudabush v. McKool, No. 15-4233 (RMB), 2015
WL 3970078, at *2 (D.N.J. June 30, 2015) (“Plaintiff appears to
have at least three strikes under this provision.”).
the allegations of the Petition — which allege that Petitioner’s
legal papers were “seized, read and shared with other employees
at FCI [Fort Dix]” (Am. Pet. 2, ECF No. 17) — do not suggest
that Petitioner is in imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g). 4
The Court notes that in his Amended Petition, Petitioner
specifically seeks return of his legal papers. See (Am. Pet. 1,
ECF No. 17). Therefore, the Court does not construe
Petitioner’s submission as anything other than a petition for
writ of mandamus seeking an order directing the Bureau of
Prisons to return Petitioner’s legal papers. However, the
allegations of the Petition suggest that the legal papers were
taken “because [he] had filed a lawsuit[.]” (Id. at 2).
Petitioner then states, “Retaliation. I was placed in
isolation.” (Id.). Petitioner also mentions that he has a right
For the reasons set forth above, Petitioner’s application
for leave to proceed in forma pauperis will be denied and the
Clerk of the Court will be ordered to administratively terminate
this action, without filing the Petition or assessing a filing
Petitioner will be granted leave to apply to re-open
within 45 days by prepaying in full the $350 filing fee and the
$50 administrative fee.
An appropriate Order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: March 14, 2016
At Camden, New Jersey
to access to the courts. (Id.). To the extent Petitioner means
to assert claims alleging violations of his constitutional
rights, the Court notes that, typically, these types of claims
are appropriately brought in the context of a civil rights
action under Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See e.g., Leamer
v. Fauver, 288 F.3d 532 (3d Cir. 2002); Castillo v. FBOP FCI
Fort Dix, 221 F. App'x 172, 175 (3d Cir. 2007). The Court makes
no determination as to the merits of such an action; nor does it
make a finding as to whether Petitioner has exhausted his
administrative remedies as required by 42 U.S.C. § 1997e. See,
e.g., Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166
L.Ed.2d 798 (2007).
Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
originally submitted timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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