Cottriel v. Jones

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION, the Court ADOPTS the 9 Report and Recommendation; DISMISSES Cottreil's Application for Writ of Mandamus 1 ; deems MOOT 2 Motion for Leave to Proceed In Forma Paurperis; deems MOOT 3 Motion for TRO filed by Jon Andrew Cottriel. Signed by Honorable Lee R. West on 2/26/13. (ap)

FILED

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
JON ANDREW C O T I R I E L , )
)
Plaintiff,
)
)
vs.
)
)
JUSTIN JONES, Director,
)

Oklahoma Department of
)

Corrections,
)

)

Defendant.
)

FEB 2 6 2013

ROBERT D. DENNIS, CLERK
U DIST~T, WESTERN DIST. OF OKLA
.S.

BY

DEPUTY

No. CIV-13-135-W

ORDER
On February 13, 2013, United States Magistrate Judge Suzanne Mitchell issued a
Report and Recommendation in this matter and recommended that the Application for Writ
of Mandamus [Doc. 1] filed by plaintiff Jon Andrew Cottriel be dismissed because this
Court lacks subject matter jurisdiction over this action. Cottriel, proceeding pro se, was
advised of his right to object, and the matter now comes before the Court on Cottriel's
Objection to Report and Recommendation. See Doc. 10.
Upon de novo review of the record , the Court concurs with Magistrate Judge
Mitchell's suggested disposition of this matter. As Magistrate Judge Mitchell noted, "it was
... [Cottriel's] clear intent to file a separate action," Doc. 9 at 2,1 "[r]ather than seeking to
enforce the injunction [entered by the Court] in Case No. CIV-03-125-W by requesting ..
. relief in that case." Doc. 9 at 3. Because this Court is not authorized to issue a writ of
mandamus against state officials or agencies, as Cottriel has requested, dismissal of the

1The papers filed by Cottriel included , inter alia, a Motion for Leave to Proceed in Forma
Pauperis, wherein Cottriel indicated that he was "apply[ing] for leave to . .. [c]ommence this action
for habeas corpus/civil rights relief." Doc. 2 at 1. Cottriel also submitted a filing fee in the amount
of $350.00. See Doc. 8.

instant action is warranted.

U, 28 U.S.C. § 1361.

See Sockey v. Gray, 159 Fed. Appx.

821 (10th Cir. 2005)(cited pursuant to Tenth Cir. R. 32.1 )(federal courts without jurisdiction
to grant writs of mandamus against state and local officials).
Accordingly, the Court
(1) ADOPTS the Report and Recommendation issued on February 13,2013;
(2) DISMISSES Cottriel's Application for Writ of Mandamus [Doc. 1] file-stamped
February 5, 2013, for lack of subject matter jurisdiction;2
(3) deems MOOT Cottriel's Motion for Leave to Proceed in Forma Pauperis [Doc.
2] file-stamped February 5,2013, since Cottriel paid the filing fee on February 6,2013, see
Doc. 8; and
(4) deems MOOT Cottriel's Motion for Temporary Restraining Order [Doc. 3] also

file-stamped February 5, 2013.
ENTERED this

~day of February, 2013.

~~
LE R. WEST
UNITED STATES DIS rRICT JUDGE

21n doing so, the Court DECLINES Cottriel's request that the Clerk of the Court be ordered
"to renumber th[is] case back to CIV-03-125-W ...." Doc. 10 at 2. If Cottriel intends to pursue
his request for relief against defendant Justin Jones, in his official capacity as Director of the
Oklahoma Department of Corrections, Cottriel should do so by filing the appropriate papers in Case
No. CIV-03-125-W.

2