United States District Court, M.D. Tennessee, Nashville Division
KENNETH A. SANDERS, Petitioner,
HONORABLE JUDGE DAVID BRAGG, Respondent.
A. Trauger United States District Judge.
Kenneth A. Sanders is a state prisoner presently incarcerated
at the Bledsoe County Correctional Complex in Pikeville,
Tennessee. Before the court is the petitioner's
application to proceed in forma pauperis. (ECF No.
2). In addition, the petitioner has filed a petition for writ
of mandamus which is before the court for an initial review
pursuant to the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. §§ 1915(e)(2) and
1915A, and 42 U.S.C. § 1997e.
Application to Proceed In Forma Pauperis
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915(a), a prisoner bringing a civil action may
be permitted to file suit without prepaying the filing fee of
$350 required by 28 U.S.C. § 1914(a). Because the
petitioner properly submitted an in forma pauperis
affidavit, and because it appears from his submissions that
the petitioner lacks sufficient financial resources from
which to pay the full filing fee in advance, the application
(ECF No. 2) will be granted.
under § 1915(b), the petitioner remains responsible for
paying the full filing fee. See Bruce v. Samuels,
___ U.S. ___, 136 S.Ct. 627, 632, n.3 (2016) (assuming
“without deciding that a mandamus petition qualifies as
a ‘civil action' or ‘appeal' for purposes
of 28 U.S.C. §1915(b)”); Gross v.
Experian, No. 10-cv-150-GFVT, 2015 WL 1038835, at *3-*4
(E.D. Ky. Mar. 10, 2015) (noting that mandamus actions are
civil proceedings to which the PLRA filing fee requirements
apply). The obligation to pay the fee accrues at the time the
case is filed, but the PLRA provides
prisoner-petitioner's the opportunity to make a
“down payment” of a partial filing fee and to pay
the remainder in installments. Accordingly, the petitioner
will be assessed the full $350 filing fee, to be paid as
directed in the order accompanying this memorandum opinion.
Standard of Review
the PLRA, the court must conduct an initial review of any
civil action brought by a prisoner if it is filed in
forma pauperis, 28 U.S.C. § 1915(e)(2), seeks
relief from government entities or officials, 28 U.S.C.
§ 1915A, or challenges the prisoner's conditions of
confinement, 42 U.S.C. § 1997e(c). Upon conducting this
review, the court must dismiss the petition, or any portion
thereof, that fails to state a claim upon which relief can be
granted, is frivolous, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2) and 1915A; 42 U.S.C. § 1997e(c).
The Sixth Circuit has confirmed that the dismissal standard
articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), “governs
dismissals for failure to state a claim under those statutes
because the relevant statutory language tracks the language
in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010). Thus, to survive scrutiny on
initial review, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
reviewing the petition to determine whether it states a
plausible claim, “a district court must (1) view the
[petition] in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
omitted)). A pro se pleading must be liberally
construed and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
petition is comprised of 5 hand-written pages of text, which
is difficult, if not impossible, to piece together into a
coherent whole. It appears that the petitioner is seeking an
order of this court directing Judge Bragg to appoint new
counsel and resentence him to a lesser sentence because he
was forced and coerced into accepting a plea agreement in
connection with a parole violation and because he was
mistreated and discriminated against during the sentencing
proceedings. The petitioner additionally seeks compensatory
and punitive damages against Judge Bragg.
28 U.S.C. § 1361, “the 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.” Id. (emphasis added). A writ
of mandamus is a drastic remedy available only in
extraordinary cases. See Kerr v. U.S. Dist. Ct., 426
U.S. 394, 402 (1976); Will v. United States, 389
U.S. 90, 95 (1967). A petitioner seeking a mandamus must
demonstrate that: “(1) no other adequate means [exist]
to attain the relief he desires, (2) the party's right to
issuance of the writ is clear and indisputable, and (3) the
writ is appropriate under the circumstances.”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010)
(internal quotation marks and citation omitted); see also
Bd.of Comm'rs of Knox Cnty. v. Aspinwall, 65 U.S.
376, 377 (1860) (issuance of a writ of mandamus to enforce
performance is appropriate only when “there is no other
petitioner requests that this court issue a writ of mandamus
compelling a state court judge to appoint new counsel and
resentence him in connection with his parole violation. This
court does not have the authority to do so. Consequently, the
petition must be dismissed because it is frivolous, see
Neitzke v. Williams,490 U.S. 319, 325 (1989) (holding
that an action may be dismissed as frivolous if “it