United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. §
1915A on the Petition for Writ of Mandamus filed by Nick
James Gonzales (Doc. 1) (“Petition”). Petitioner
Gonzales fails to establish a right to mandamus relief and
the Court will dismiss his Petition for failure to state a
claim on which relief can be granted.
Nick James Gonzales is a prisoner incarcerated at the
Penitentiary of New Mexico. (Doc. 1 at 1). Petitioner
Gonzales is also a frequent litigator in this Court. See
Gonzales v. Hatch, No. CV 13-00305 RB/GBW, Gonzales
v. Franco, No. CV 14-01001 MV/KBM, Gonzales v.
Franco, No. CV 14-01163 JB/SMV, Gonzales v. Corizon
Health Care Providers, No. CV 15-00890 WJ/GJF,
Gonzales v. Penitentiary of New Mexico, No. CV
16-01275 WJ/LF, Gonzales v. Loya, No. CV 16-01388
WJ/GJF, Gonzales v. Robinson, No. CV 16-1409
JCH/GBW, Gonzales v. Attorney General, No. CV
17-01027 JCH/KRS (this case), Gonzales v. Hatch, No.
CV 18-00283 KG/KRS, and Gonzales v. Centurion Corr.
Health Care of New Mexico, No. CV 18-00453 RB/JHR. In
this case, Gonzales seeks mandamus relief from the Court:
“Petitioner respectfully asks this Court to issue writ
of mandamus, and defendants ordered to investigate make
changes with approval of the Court and Plaintiffs, which
(illegible) illegal occurrences, deters abuse of prisoners by
prison staff, a means independent of prison officials where
allegations can be presented, and investigated not covered
(Doc. 1 at 3). The Petition sets out a number of generalized
allegations against prison staff, including failing to
adequately respond to grievances, failing to provide legal
statutes, rules and constitutions, and ignoring requests for
copying and notary services. (Doc. 1 at 4-5).
is an extraordinary remedy. Under 28 U.S.C. § 1361,
“[t]he 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.” A writ of
mandamus will “issue only to compel the performance of
a clear nondiscretionary duty.” Pittston Coal Group
v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d
408 (1988) (quotation omitted). “To grant mandamus
relief, the court must find (1) a clear right in the
plaintiff to the relief sought; (2) a plainly defined and
preemptory duty on the part of the defendant to do the action
in question; and (3) no other adequate [available]
remedy....” Wilder v. Prokop, 846 F.2d 613,
620 (10th Cir.1988). To be eligible for relief, then,
Petitioner must establish that the respondent's duty to
perform the act in question is plainly defined and
peremptory, that he has a clear right to relief, and that he
has no other adequate remedy. Rios v. Ziglar, 398
F.3d 1201, 1206 (10th Cir.2005).
Petition filed by Gonzales does not establish any of the
requisite conditions for relief under 28 U.S.C. § 1361.
First, the acts he seeks to have Respondents perform are
vague and generalized, and he provides no authority imposing
a peremptory duty on Respondents to perform any of the
actions he identifies. There is no plainly defined and
peremptory duty on the part of the Respondents to do the
actions in question. Marquez-Ramos v. Reno, 69 F.3d
477, 479 (10th Cir.1995).
presents the Court with no authority establishing that he is
clearly entitled to the relief he requests and that he has no
other adequate remedy. To the contrary, mandamus does not
afford him a clear right to relief on his claims relating to
conditions of his confinement and those claims are more
properly remedied through a prisoner civil rights case under
42 U.S.C. § 1983. See Rios v. Ziglar, 398 F.3d
at 1206; United States v. Dotson, 430 Fed.Appx. 679,
683 (10th Cir. 2011). Petitioner Gonzales has not established
that his right to mandamus relief is clear and indisputable.
In re Stine, 2010 WL 2925944, at *1 (10th Cir.
2010). The Petition fails to state any claim for mandamus
relief under 28 U.S.C. § 1361 and the Petition will be
dismissed by the Court.
the Court is to allow a pro se prisoner the opportunity to
remedy the defects in his pleading. See Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991);
Reynoldson v. Shillinger, 907 F.2d 124, 126
(10th Cir. 1990). However, as noted above,
Petitioner Gonzales has already filed numerous actions in
this Court, including civil rights claims relating to the
conditions of his confinement under 42 U.S.C. § 1983. It
can be inferred from his Petition that he seeks mandamus
relief in order to circumvent prior adverse rulings by this
Court. See Doc. 1 at 5 (“failure negatively
impacted me (and the outcome of a case”)). The Petition
wholly fails to establish any right to mandamus relief and
the Court will not grant Petitioner leave to amend the
Petition. Hall v. Bellmon, 935 F.2d at 1109.
the Petition for Writ of Mandamus filed by Nick James
Gonzales (Doc. 1) is DISMISSED with
prejudice under 28 U.S.C. ...