Harper v. Bearden et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 22 of Magistrate Judge Suzanne Mitchell and denies plaintiff's motions 24 and 25 ...the court extends the deadline for plaintiff to pay filing fee to 10/20/2014; plaintiff's motion 20 for writ of mandamus is denied. Signed by Honorable Joe Heaton on 10/02/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DALE HARPER,
Plaintiff,
vs.
OKLAHOMA DEPARTMENT OF
CORRECTIONS DIRECTOR, ROBERT
PATTON, et al.,
Defendants.

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NO. CIV-14-0563-HE

ORDER
By order entered August 27, 2014, the court denied plaintiff’s motion to proceed in
forma pauperis, directing him to pay the full $400 filing fee by October 13, 2014, or the case
would be dismissed [Doc. #19]. Thereafter, on September 5, 2014, plaintiff filed a motion
for mandamus, seeking an order directing various prison officials to disburse funds from his
prison account [Doc. #20]. Magistrate Judge Mitchell has since recommended that the
motion for mandamus be denied, on the basis that a federal court lacks jurisdiction to issue
a writ of mandamus to state officials in these circumstances. Report and Recommendation
[Doc. #22]. Plaintiff has since filed a motion to reconsider the denial of IFP status [Doc.
#24] and a motion for extension of time to respond to the recommendation for denial of the
mandamus motion [Doc. #25].
The motion for reconsider of the denial of IFP status [Doc. #24] is DENIED.
Defendant does not challenge the determination that he has three or more “strikes” nor has
he made “specific and credible” allegations of “imminent danger of serious physical harm”

such as would be a basis for proceeding without payment of the full fee. See Kinnell v.
Graves, 265 F.3d 1125, 1127-28 (10th Cir. 2001), citing White v. Colorado, 157 F.3d 1226,
1232 (10th Cir. 1998).1 However, in light of the apparent confusion as to payment of the
$400 filing fee, the court will extend the deadline for payment of the full filing fee to
Monday, October 20, 2014.
The motion for extension of time to respond to the Report and Recommendation
recommending denial of the mandamus motion [Doc. #25] is also DENIED. Judge
Mitchell’s recommendation was based on clearly established law. As the Tenth Circuit Court
of Appeals recently observed, in a similar circumstance, “the district judges have repeatedly
explained, and we have confirmed, that the district courts lack power to issue a writ of
mandamus to state officials ....” Adkins v. Kansas Comm’n on Judicial Qualifications, 510
Fed. Appx. 700, (10th Cir. 2013). It would be futile for plaintiff to expend further time in
trying to argue with that clearly established proposition.
For the same reason, and as more fully stated by Judge Mitchell, the Report and
Recommendation [Doc. #22] is adopted on the merits. Plaintiff’s motion for writ of
mandamus [Doc. #20] is DENIED.
Plaintiff would do well to heed Judge Mitchell’s suggestion in her September 11
report: plaintiff should carefully review prison regulations to assure that he submits the

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Against the backdrop of plaintiff’s multiple filings in this and other cases, the court does
not find it credible that plaintiff simply forgot to include the information about the supposed threats
on his life in his earlier response. Indeed, his response to the Report and Recommendation denying
IFP status, which specifically discussed the “imminent danger” exception, stated that his only
objection to the R&R was the time frame ordered [Doc. #18].

proper documents to seek payment of the filing fee and should present a copy of Judge
Mitchell’s order (and this order) to the appropriate prison officials.
IT IS SO ORDERED.
Dated this 2nd day of October, 2014.