Richard v. Hinde et al

Filing 4

MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis Email sent to Manager of Three Strikes List, dismissing with prejudice 1 Petition for Extraordinary Relief. This dismissal will count as a strike. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

TYRONE D. RICHARD, a/k/a
TYROND DWAYNE RICHARD,
TDCJ #1816974,

§
§
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§
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§
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§
§
§
§

Petitioner,
v.
DAN HINDE, et al.,
Respondents.

May 30, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1570

MEMORANDUM OPINION AND ORDER

State inmate Tyrone D.
Richard

(TDCJ #1816974),

Richard,

also known as Tyrond Dwayne

has filed a

Petition for Extraordinary

Relief ("Petition") in the form of a writ of mandamus (Docket Entry
No. 1-1).

He has also filed a Declaration of Inability to Pay Cost

(Docket Entry No. 2), which is construed as a motion for leave to
proceed without prepayment of the filing fee.

Thus, the court is

required to scrutinize the claims and dismiss the case if it "is
frivolous, malicious, or fails to state a claim upon which relief
may be granted" or "seeks monetary relief from a defendant who is
immune

from

such

relief."

28

U.S.C.

considering all of the pleadings,

§

1915 (e) (2) (B).

After

the court concludes that this

case must be dismissed for the reasons explained below.
I .

Background

Richard is currently serving a 30-year prison sentence in the

Texas Department of Criminal Justice - Correctional Institutions
Division ("TDCJ") as the result of a 2012 conviction for possession
of a

controlled substance.

See State v.

(180th Dist. Ct., Harris Cty., Tex.).

Richard,

No.

1336435

When Richard was arrested

and charged with the offense that resulted in this conviction,
officers recovered 26.2 grams of crack cocaine and $3,698.00 in
cash in his possession.
2013 WL 3155957,

*1-2

2013, pet. ref'd).

See Richard v. State, No. 01-12-00995-CR,
(Tex. App. -

Houston [1st Dist.]

June 20,

After this conviction was entered, the State

initiated a civil forfeiture proceedings for the funds that were
seized at the time of Richard's arrest.

See State v. Approximately

$3,698.00, No. 2012-13937 (269th Dist. Ct., Harris Cty., Tex.).
According to Richard, the State prevailed in the forfeiture
action as the result of a judgment entered by the lead respondent
in this case, the Honorable Dan Hinde, who is the presiding judge
of the 269th District Court of Harris County,
Richard's

efforts

unsuccessful. 2

to

set

aside

that

Texas. 1

judgment

To date,
have

been

See In re Tyrone Richard, No. 01-16-00751-CV, 2016

WL 7104014, *1 (Tex. App.- Houston [1st Dist.] Dec. 6, 2016);

In

re Tyrone Richard, No. 17-0120 (Tex. Sup. Ct. March 17, 2017).

1

Petition, Docket Entry No. 1-1, p. 1. Public records reflect
that the district court granted the State's motion for a default
judgment in the State's favor on May 8, 2012.
See Harris County
District Clerk, at http://www.hcdistrictclerk.com (last visited May
30, 2017).
2

Petition, Docket Entry No. 1-1, p. 1.
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Richard now challenges the

result of the civil forfeiture

proceeding, arguing that the funds were recovered as the result of
an unlawful search and were not otherwise subject to forfeiture.
Richard argues that he filed a "[Motion for]

3

Summary Judgment of

Dismissal" that would have resulted in a judgment in his favor in
the

civil

forfeiture

proceeding,

refused to rule on that motion. 4

but

that

Hinde

has

failed or

Richard seeks relief in the form

of a writ of mandamus to compel Hinde to rule on his motion and
enter a judgment of dismissal in his favor.
II.

5

Discussion

Richard's request for a federal writ of mandamus is governed
by 28 U.S.C. § 1361.

This statute provides that 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."

u.s.c.

§

1361.

28

Richard is not entitled to a writ of mandamus

because the respondent is a state official,
employee of the United States.

and not an agent or

A federal district court has no

power to issue writs of mandamus to direct state officials in the
performance

of

their

duties.

See

Moye

v.

Clerk,

Superior Ct., 474 F.2d 1275, 1275-76 (5th Cir. 1973).
3

Petition, Docket Entry No. 1-1, pp.3-4.

4

Id.

5

Id.

at 4, 8.

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DeKalb

Cty.

Likewise,
question

the

to the extent that Richard's arguments call into
validity

of

a

state

court

civil

judgment,

the

Rooker-Feldman doctrine bars review of his claims.

See Liedtke v.

State Bar of Tex., 18 F.3d 315, 317 (5th Cir.1994)

(citing Rooker

v. Fidelity Trust Co.,

263 U.S. 413,

44 S. Ct. 149, 68 L.Ed. 362

(1923) and D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct.
1303, 75 L.Ed.2d 206 (1983)).
doctrine

bars

review

of

In that regard,

"cases

brought

by

the Rooker-Feldman
state-court

losers

complaining of injuries caused by state-court judgments rendered
before

the

district

district

court

court

proceedings

commenced

review and rejection of those

and

inviting

judgments." Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S. Ct.
1517, 1521-22, 161 L.Ed.2d 454

(2005).

Accordingly, Richard's Petition must be dismissed pursuant to
28 U.S.C. § 1915(e) (2) (B) for failure to state a claim upon which
relief can be granted.

III.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

The motion for leave to proceed without prepayment of the
filing fee

2.

(Docket Entry No. 2) is GRANTED.

The TDCJ Inmate Trust Fund is ORDERED to deduct funds
from the inmate trust account of Tyrone D. Richard, a/k/a
Tyrond Dwayne Richard (TDCJ #1816974) and forward them to
-4-

the Clerk on a

regular basis,

28

provisions

of

filing fee
3.

($350.00) has been paid.

§

1915 (b),

until

the

entire

The Petition for Extraordinary Relief (Docket Entry No.
1)
§

4.

U.S. C.

in compliance with the

is DISMISSED with prejudice pursuant to
1915 (e) (2) (B)

2 8 U.S. C.

for failure to state a claim.

This dismissal will count as a STRIKE for purposes of 28

u.s.c.

§

1915(g).

The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the petitioner.
a

copy by regular mail,

(1)

the TDCJ -

facsimile

The Clerk will also provide
transmission,

Office of the General Counsel,

or e-mail

P. 0.

to:

Box 13084,

Austin, Texas 78711, Fax Number [phone]; (2) the TDCJ Inmate
Trust

Fund,

P.O.

Box

629,

Huntsville,

Texas

77342-0629,

fax

936-437-4793; and (3) the Manager of the Three-Strikes List for the
Southern District of Texas at: [e-mail].
SIGNED at Houston, Texas, on this 30th day of

SIM LAKE
UNITED STATES DISTRICT JUDGE

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