Richard v. Hinde et al
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
TYRONE D. RICHARD, a/k/a
TYROND DWAYNE RICHARD,
DAN HINDE, et al.,
May 30, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1570
MEMORANDUM OPINION AND ORDER
State inmate Tyrone D.
also known as Tyrond Dwayne
has filed a
Petition for Extraordinary
Relief ("Petition") in the form of a writ of mandamus (Docket Entry
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
considering all of the pleadings,
1915 (e) (2) (B).
the court concludes that this
case must be dismissed for the reasons explained below.
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
See State v.
(180th Dist. Ct., Harris Cty., Tex.).
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,
2013, pet. ref'd).
See Richard v. State, No. 01-12-00995-CR,
(Tex. App. -
Houston [1st Dist.]
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,
See In re Tyrone Richard, No. 01-16-00751-CV, 2016
WL 7104014, *1 (Tex. App.- Houston [1st Dist.] Dec. 6, 2016);
re Tyrone Richard, No. 17-0120 (Tex. Sup. Ct. March 17, 2017).
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
Petition, Docket Entry No. 1-1, p. 1.
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]
Summary Judgment of
Dismissal" that would have resulted in a judgment in his favor in
refused to rule on that motion. 4
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.
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."
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
Superior Ct., 474 F.2d 1275, 1275-76 (5th Cir. 1973).
Petition, Docket Entry No. 1-1, pp.3-4.
at 4, 8.
to the extent that Richard's arguments call into
Rooker-Feldman doctrine bars review of his claims.
See Liedtke v.
State Bar of Tex., 18 F.3d 315, 317 (5th Cir.1994)
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)).
In that regard,
complaining of injuries caused by state-court judgments rendered
review and rejection of those
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S. Ct.
1517, 1521-22, 161 L.Ed.2d 454
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.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The motion for leave to proceed without prepayment of the
(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
the Clerk on a
($350.00) has been paid.
The Petition for Extraordinary Relief (Docket Entry No.
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
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the petitioner.
copy by regular mail,
the TDCJ -
The Clerk will also provide
Office of the General Counsel,
Austin, Texas 78711, Fax Number (512) 936-2159; (2) the TDCJ Inmate
936-437-4793; and (3) the Manager of the Three-Strikes List for the
Southern District of Texas at: Three_Strikes@txs.uscourts.gov.
SIGNED at Houston, Texas, on this 30th day of
UNITED STATES DISTRICT JUDGE
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