NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAIME LUEVANO, :

: Civil Action No. 11-1248 (FLW)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

2ND CIRCUIT JUDGES, CLERKS, :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Jaime Luevano

Connally Unit

899 FM y632

Kenedy, TX 78119

WOLFSON, District Judge

Plaintiff Jaime Luevano is a prisoner in the custody of the

Texas Department of Corrections; he is incarcerated at the

Connolly Unit, Kenedy, Texas. He has submitted a petition for

writ of mandamus. He has neither prepaid the filing fee nor

submitted an application for leave to proceed in forma pauperis.1

 This action is a civil action governed by the Prison 1

Litigation Reform Act, including 28 U.S.C. §§ 1995 and 1995A. 

See, e.g., Martin v. Grimshaw, 198 F.3d 248 (Table), 1999 WL

1021705 (6th Cir. 1999) (mandamus action under 28 U.S.C. § 1361

is a “civil action” for purposes of PLRA); Martin v. U.S., 96

F.3d 853 (7th Cir. 1996) (same); In re Nagy, 89 F.3d 115, 116 (2d

Cir. 1996) (PLRA applies to § 1361 mandamus actions that seek

relief analogous to civil rights complaints); Evans v. McConnell,

2009 WL 1560192 (W.D. Pa. June 3, 2009); Keys v. Dept. of

Justice, 2009 WL 648926 at *1, *3 (M.D. Pa. Mar. 10, 2009). Cf.

Madden v. Myers, 102 F.3d 74, 76-77 n.2 (3d Cir. 1996) (declining

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I. BACKGROUND

Plaintiff has filed a pleading denominated a petition for

writ of mandamus to compel the U.S. Court of Appeals for the

Second Circuit to file appeals, etc. Plaintiff asserts that the

Circuit Judges and Clerks “are protecting and covering up a vast

massive family ring mob of El Paso, Texas under all the RICO Act

- overt act - white collar crimes in general.” There is also an

unintelligible reference to former U.S. Senator Hillary Rodham

Clinton. Attached to the Petition are some unintelligible

affidavits and/or motions regarding DNA evidence and polygraph

evidence.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

to decide whether PLRA applies to § 1361 actions in the nature of

mandamus) with Franco v. Bureau of Prisons, 207 Fed.Appx. 145,

2006 WL 3521880 (3d Cir. 2006) (affirming district court

dismissal under 28 U.S.C. § 1915(e)(2) of action for § 1361 writ

of mandamus against Bureau of Prisons, and dismissing appeal

under § 1915(e)(2)(B)).

2

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In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted).

3

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While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)

(citations omitted). See also Ashcroft v. Iqbal, 129 S.Ct. 1937,

1949 (2009) (when assessing the sufficiency of any civil

complaint, a court must distinguish factual contentions -- which

allege behavior on the part of the defendant that, if true, would

satisfy one or more elements of the claim asserted -- and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements”); Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (“[A] complaint

must do more than allege the plaintiff's entitlement to relief. 

A complaint has to ‘show’ such an entitlement with its facts.”);

Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)

(“we decline at this point to read Twombly so narrowly as to

limit its holding on plausibility to the antitrust context”).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

4

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Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. ANALYSIS

Petitioner is barred from proceeding in forma pauperis by

the three strikes provision codified at 28 U.S.C. § 1915(g)

because he has, on numerous occasions, filed civil actions which

were dismissed as frivolous. See Luevano v. Wiles, Civil No.

2:09-cv-0271, 2009 WL 4667115 (N.D. Tex. 2009), and cases cited

therein.2

In addition, the writ of mandamus was abolished by

Fed.R.Civ.P. 81(b) which states, “The writs of scire facias and

mandamus are abolished. Relief previously available through them

may be obtained by appropriate action or motion under these

rules.” Nevertheless, federal courts may issue all writs

necessary or appropriate in aid of their respective jurisdictions

 To date, Petitioner has filed more than 50 civil actions 2

in the United States District Courts in Arizona, California, the

District of Columbia, Illinois, Louisiana, Michigan, Texas, New

Mexico, Nevada, New York, Ohio, Oklahoma, Pennsylvania, and

Virginia, and has prosecuted appeals in the First, Third, Fourth,

Fifth, Sixth, Seventh, and Tenth Circuit Courts of Appeal, as

well as the Court of Appeals for the District of Columbia

Circuit. See PACER, U.S. Party/Case Index at

https://pcl.uscourts.gov/view?sort=cs_date_filed&rid=FXkuxA6evTIO

9trpABeGd09yWtGAb9jmcy310R4e&page=1&reverse=1

See also the list of frivolous lawsuits compiled in Luevano v.

Clinton, Civil No. 5:10-cv-754 (N.D.N.Y.) at Doc. 4.

5

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and agreeable to the usages and principles of law. 28 U.S.C.

§ 1651. Actions in the nature of mandamus are provided for in 28

U.S.C. § 1361, which states as follows:

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.

Petitioner’s creative pleading alleges no facts suggesting

an entitlement to relief. It lacks an arguable basis either in

fact or in law and is subject to dismissal as frivolous.

As Petitioner’s pleading is legally and factually frivolous,

it would be pointless to grant him leave to pay the filing fee. 

Accordingly, the Petition will be dismissed.3

 The Court notes that this Court also is not the proper 3

venue for this matter. See 28 U.S.C. § 1406(a) (“The district

court of a district in which is filed a case laying venue in the

wrong division or district shall dismiss, or if it be in the

interest of justice, transfer such case to any district or

division in which it could have been brought.”) It would not be

in the interest of justice to transfer this frivolous matter to

any other federal court.

6

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IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed as legally frivolous, pursuant to 28 U.S.C.

§ 1915A(b)(1). It does not appear that Petitioner could cure the

defects by amendment. Accordingly, the Petition will be

dismissed with prejudice.

An appropriate Order follows.

 S/Freda L. Wolfson 

Freda L. Wolfson

United States District Judge

Dated: March 18, 2011

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