Martin v. Crain

Filing 6

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Robert Lee Martin. It is therefore recommended that Plaintiffs complaint should be construed as an application for writ of mandamus and be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). Signed by Judge Mark Lane. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROBERT LEE MARTIN
#1050629
V.
THE HON. DAVID CRAIN, JUDGE,
331ST DISTRICT COURT, TRAVIS
CO. TX

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A-15-CA-326-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Plaintiff’s civil rights complaint. Plaintiff, proceeding pro se, has been
granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his civil rights complaint, Plaintiff was confined in the Clements Unit
of the Texas Department of Criminal Justice - Correctional Institutions Division. Plaintiff sues
Judge David Crain of the 331st Judicial District Court of Travis County, Texas. Judge Crain
presided over Plaintiff’s criminal case, Cause No. D-1-DC-95-955530, in which Plaintiff was
convicted of aggravated sexual assault and sentenced to life in prison.

Plaintiff asserts he filed three post-judgment motions in his state criminal case, and Judge
Crain has failed to make a ruling. Plaintiff requests the Court to compel Judge Crain to consider and
rule on his motions and to rule on any future motions Plaintiff may file.
DISCUSSION AND ANALYSIS
A.

Standard Under 28 U.S.C. § 1915(e)
An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)

if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status
does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog
the judicial machinery with meritless litigation and abuse already overloaded court dockets.”
Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
B.

Mandamus

Plaintiff’s complaint should be construed as an application for writ of mandamus. Although
the writ of mandamus was abolished by Federal Rule of Civil Procedure 81(b), federal courts may
issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the
usages and principles of law. See 28 U.S.C. § 1651. But a federal court lacks the general power to
issue writs of mandamus to direct state courts and their judicial officers in the performance of their
duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb County Superior Court,
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474 F.2d 1275 (5th Cir. 1973); Lamar v. 118th Judicial District Court of Texas, 440 F.2d 383 (5th
Cir. 1971); Haggard v. Tennessee, 421 F.2d 1384 (6th Cir. 1970). Because Plaintiff seeks only
mandamus relief, his complaint should be dismissed. See Santee v. Quinlan, 115 F.3d 355, 357 (5th
Cir.1997) (affirming dismissal of petition for writ of mandamus as frivolous because federal courts
lack the power to mandamus state courts in the performance of their duties); Rhodes v. Keller, 77
Fed. Appx. 261 (5th Cir. 2003) (affirming dismissal as frivolous of § 1983 complaint, construed as
a petition for mandamus relief, because plaintiff was merely seeking to have the federal court direct
the state court to perform its duties as he wished).
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint should be construed as an application
for writ of mandamus and be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e).
It is further recommended that the Court include within its judgment a provision expressly
and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in
(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant
monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff
from filing any lawsuits in this Court without first obtaining the permission from a District Judge
of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some
combination of these sanctions.
It is further recommended that Plaintiff should be warned that for causes of action which
accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order
of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate
while the inmate was in the custody of the Department or confined in county jail awaiting transfer
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to the Department following conviction of a felony or revocation of community supervision, parole,
or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct
time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued
good conduct time, if the Department has previously received two final orders; or (3) 180 days of
an inmate’s accrued good conduct time, if the Department has previously received three or more
final orders. See, TEX . GOV ’T CODE ANN . § 498.0045 (Vernon 1998).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three
actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure
to state a claim on which relief may be granted, then he will be prohibited from bringing any other
actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ
- Office of the General Counsel and the Pro Se Clerk for the United States District Court for the
Eastern District of Texas.
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
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injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED on April 29, 2015.

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MARK LANE
UNITED STATES MAGISTRATE JUDGE

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