Evenson v. Davis

Filing 4

ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 5/6/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DENNIS EVENSON,
Plaintiff,
vs.
JEFF W. DAVIS,
Defendant.

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CIV. 14-5018-JLV

ORDER

Pending before this court is plaintiff’s petition for a writ of mandamus
requesting this court compel Seventh Judicial Circuit Court Judge Jeff W.
Davis to permit Mr. Evenson to file a writ of habeas corpus in state court.
(Docket 1). Mr. Evenson also filed a motion to proceed in forma pauperis.
(Docket 3).
Section 1915(a)(1) of Title 28 of the United States Code directs the court
to authorize the commencement of a civil action without prepayment of fees
upon proof of plaintiff’s inability to pay. 28 U.S.C. § 1915(a)(1). In his
declaration, Mr. Evenson indicates he is currently incarcerated and has no
income. (Docket 3). Mr. Evenson did not file a certified copy of his trust
account statement as required by 28 U.S.C. § 1915(a)(2).
Proceeding in forma pauperis is governed by 28 U.S.C. § 1915. That
statute provides:
Notwithstanding any filing fee, . . . the court shall dismiss the case at
any time if the court determines that -...

(B) the action or appeal -(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted; or
(iii) seeks monetary relief against a defendant who is
immune from such relief.
28 U.S.C. § 1915(e)(2). Subsection (e)(2) allows the court sua sponte to review a
complaint filed with an in forma pauperis application to determine if the action
is frivolous, malicious, fails to state a claim, or seeks monetary relief against a
defendant or defendants who are immune from such relief. Id. Thus, the court
is required to screen a pro se complaint as soon as practicable and to dismiss
those which are frivolous or fail to state a claim for relief.
Fed. R. Civ. P. 81(b) abolished the writ of mandamus in civil actions in
federal district courts. See Fed. R. Civ. P. 81(b); Booker v. State of Arkansas,
380 F.2d 240, 242 (8th Cir. 1967) (abrogated on other grounds, Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973)). The Mandamus Act
provides that “[t]he district court 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.” 28 U.S.C.
§ 1361. This court has no authority under the act to compel action by state
officers, including state judicial officers. See Veneri v. Circuit Court of
Gasconade County, 528 F. Supp. 496, 498 (E.D. Mo. 1981) (“[I]t is well settled

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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.”). Mr. Everson’s petition fails to
state a claim upon which relief can be granted. Accordingly, it is hereby
ORDERED that plaintiff’s petition for a writ of mandamus (Docket 1) is
denied.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma
pauperis (Docket 3) is denied as moot.
Dated May 6, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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