Gregory T. Howard, Plaintiff,


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UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Civil ActionNo. United States District Court for the District ofColumbia and District Judge Colleen Kollar-Kotelly, ) ) ) ) ) ) ) ) ) ) ) Defendants.
MEMORANDUM OPINION 

# FILED JUN 30 2010 Clerk 

## Us o·

Bankr· .strict

### and Uptcy Courts 

# It 111.1

This matter is before the Court on review ofplaintiffspro se complaint and application to proceed informapauperis. Pursuant to 28 U.S.C. 

### § 1915(e), the Court is required to dismiss a complaint upon a determinationthat it is frivolous, malicious or fails to state a claim upon which reliefcan be granted. 28 U.S.c. § 1915(e)(2)(B)(i)-(ii). The Court will dismiss this case on all three grounds. Plaintiffis a resident ofToledo, Ohio. He seeks the issuance ofa writ ofmandamus against United States District Judge Kollar-Kotelly ofthis Court to compel herto vacate the dismissal order issued on March 30, 2009 in Howard v. UnitedStates District Courtfor the Southern District of Ohio, Civ. Action No. 09-531 (CKK) ("HowardI"), and to transfer that case to the Southern District ofOhio. The complaint fails to state a claim because the mandamus statute applies to "officer[s] or employee[s] ofthe United States orany agency thereof[,]" 28 U.S.C. 

### § 1361, as to "matters arising in the executive branch and its administrative agencies." Seltzer v. Foley, 502 F. Supp. 600, 602 n.2 (S.D.N.Y. 1980). The complaint is frivolous becausethe docket ofHowardI, which plaintiffhas attached to the current complaint, shows that Judge Kollar-Kotelly dismissedthe case for lack ofsubject matterjurisdiction, denied plaintiffs various post-judgment motions, see Minute Order ofMay 21, 2009, and most recently denied plaintiffs Rule 60(b) motion seeking the same reliefsought in this case and his motion to appeal informapauperis. See Order ofApril 16, 2010 [Dkt. No. 24]. In addition, the HowardI docket shows that on July 10, 2009, the United States Court ofAppeals for the District ofColumbia Circuit summarily affirmed Judge Kollar-Kotelly's dismissal order, see Dkt. No. 17 (Mandate of USCA), and plaintiffhas attached to the current complaint the D.C. Circuit's most recent order denying his motion to proceed there informapauperis because "[t]he district court correctly certified that the appeal [from the Rule 60(b) denial] is not taken in good faith." PI.'sEx. 7. A complaint may be dismissed as frivolous when, as here, "there is indisputably absent any factual and legal basis for the asserted wrong." Brandon v. District of Columbia Bd. of Parole, 734 F.2d 56, 59 (D.C. Cir. 1984). The complaint is malicious because in HowardI, plaintiffwas told more than once that he had no further recourse in this Court and was effectively barred from filing any more postjudgmentmotions. See Order ofApril 16, 2010. Yet, plaintiffpersists in beating a dead horse by filing a new action based on decidedly frivolous issues. See Schwarz v. 

# us. Dep '/ of Treasury, 131 F. Supp. 2d 142, 148 (D.D.C. 2000) (warning that "[a]ny further attemptto litigate [repetitive] claim[s] is [] subject to dismissal as malicious"). For the foregoing reasons, the complaint will be dismissed with prejudice. A separate Order accompanies this Memorandum Opinion.
United Date: June-V

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