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Seifert v. Kleine

United States District Court, D. Nebraska

June 29, 2018

TIMOTHY SEIFERT, Petitioner,
v.
DONALD W. KLEINE, as Douglas County, Nebraska Prosecutor, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff, Timothy Seifert, is a federal prisoner who is currently confined at Terre Haute FCI in Indiana. He has been granted leave to proceed in forma pauperis and has paid his initial partial filing fee. The court now conducts an initial review of Petitioner's pleading to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. SUMMARY OF PETITION

         Seifert seeks the issuance of a writ of mandamus, pursuant to 28 U.S.C. § 1651, to compel the Douglas County Attorney to dismiss a criminal complaint that was filed in the County Court of Douglas County, Nebraska, on December 19, 2011, alleging that Seifert made terroristic threats in violation of Neb. Rev. Stat. § 28-311.01(1)(a), a Class IV felony. Seifert alleges that an arrest warrant was posted to the National Crime Information Center database by the County Attorney, [1] and, as a result, that Seifert is ineligible for early release from prison, placement in a low security facility, and participation in various rehabilitation programs. Seifert further claims the County Attorney has acted to prevented the Clerk of the Douglas County Court from filing Seifert's demands for speedy trial and motions to dismiss in the criminal case.

         II. LEGAL STANDARDS ON INITIAL REVIEW

         The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, [2] or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         III. DISCUSSION OF CLAIMS

         Rule 81(b) of the Federal Rules of Civil Procedure has abolished the writ of mandamus in civil actions in federal district courts. Booker v. State of Arkansas, 380 F.2d 240, 242 (8th Cir. 1967), abrogated on other grounds by Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). Relief in the nature of mandamus is confined to situations where it is in necessary aid of the court's jurisdiction. Id. Such relief may be granted only in instances where, before adoption of Rule 81(b), the remedy of mandamus would have been available. Haggard v. State of Tennessee, 421 F.2d 1384, 1385 (6th Cir. 1970). In the absence of special statutory authority, a federal court can issue writs of mandamus only as ancillary to and in aid of jurisdiction otherwise vested in it. Id. at 1386.

         A federal court cannot issue a writ of mandamus that compels state officials to comply with state law. State ex rel. Skaggs v. Brunner, 588 F.Supp. 2d 828, 833 (S.D. Ohio 2008) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)). A federal court may issue a writ of mandamus ordering a state official to enforce rights protected by federal law. Id. However, “[i]t is settled that a federal court has no general jurisdiction to issue writs of mandamus where that is the only relief sought.” Id. (quoting Haggard, 421 F.2d at 1386).

         Because Seifert seeks only the issuance of a writ of mandamus, his Petition must be dismissed for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. See, e.g., Cook v. Hinrichs, 500 F.Supp. 2d 1225, 1227 (D.S.D. 2007) (dismissing application for writ of mandamus on initial review where petitioner only sought to stop his criminal prosecution in state court); Craigo v. Hey, 624 F.Supp. 414, 416 (S.D. W.Va. 1985) (sua sponte dismissal of petition for writ of mandamus).

         Even if Seifert's Petition for Writ of Mandamus might be liberally construed as a complaint for injunctive relief filed under 42 U.S.C. § 1983, to redress alleged deprivations of rights guaranteed by the United States Constitution, [3] it appears from the face of the pleading that there is a bar to relief because all claims and issues raised in this action have been adjudicated by the Nebraska Supreme Court. Seifert alleges:

20. On De1cember 30, 2015, Petitioner filed a Petition for Writ of Mandamus with the Nebraska Supreme Court, under Docket # S-17-000165, seeking mandamus to compel the Douglas County Court and Kleine to take action on Petitioner's repeated requests for Final Disposition and Speedy Trial, as well as all other motions, pleadings, and filings submitted to the Court and Kleine.
21. On February 9, 2017, the Nebraska Supreme Court denied the Petition for Mandamus.
22. As such, as of February 9, 2017, Petitioner has fully exhausted all available State remedies, and has pursued relief, and presented all issues hereinafter presented, to ...

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