United States District Court, W.D. Wisconsin
R. WAYNE JOHNSON, Plaintiff,
DEPT. VETERAN AFF, and U.S. DEPT. JUSTICE, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
plaintiff R. Wayne Johnson, who is currently incarcerated at
a Texas state correctional institution, filed a complaint
entitled “Original Complaint for Writ of Mandamus;
Motion to Enforce Crime Victim Rights Act; and Criminal
Complaint.” (Dkt. #1.) His allegations are vague, but
it appears that Johnson is asking this court to direct the
U.S. Attorney's office to prosecute unnamed employees at
his institution for opening his mail. Johnson is seeking
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 (dkt. #2), and his incarceration requires this
court to screen his complaint under 28 U.S.C. § 1915A.
For the reasons that follow briefly, Johnson may not proceed
in forma pauperis, and, even assuming that Johnson is willing
to pay the full $400 filing fee, his complaint must be
dismissed for failure to state a claim upon which relief can
start, applicable to Johnson's motion to proceed in forma
pauperis is the “three strike” limit set forth in
28 U.S.C. § 1915(g), which provides that no prisoner may
bring a civil action or appeal a judgment in a civil action
in forma pauperis if the prisoner has, on three or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal that was dismissed on grounds
that it was frivolous, malicious or failed to state a claim
upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury. While
Johnson has not previously filed any lawsuits in this court,
a nationwide search shows that he has filed well over sixty
cases throughout the country, many of which have been filed
in Texas, and none of which resulted in relief for Johnson.
At least three of those cases have been dismissed as
frivolous or for failure to state a claim. See Johnson v.
Goains, No. 4:12-cv-46 (W.D. Tex. May 14, 2012)
(dismissing complaint for failure to state a claim);
Johnson v. Kennedy, No. 2:09-cv-210 (S.D. Tex. Nov.
24, 2009) (dismissing complaint as frivolous and for failure
to state a claim); Johnson v. Whatley, No. 02-40760,
Fed.Appx. 79 (5th Cir. 2003) (dismissing appeal as frivolous
and stating that Johnson has at least three strikes for
purposes of 28 U.S.C. § 1915(g)).
filing consists mainly of case citations and very few factual
allegations, but his most recent filing makes it clear that
he is asking this court to compel the U.S. Department of
Justice to initiate a criminal proceeding against
unidentified individuals working at his prison, on the ground
that prison staff have been violating federal laws in opening
his mail. There is no suggestion that he is
currently in danger of suffering physical harm. Accordingly,
the court is denying Johnson leave to proceed in forma
the court would next inform Johnson that he would need to
submit the $400 filing fee to continue this lawsuit, but that
step would be fruitless, since the court would immediately
dismiss this case under 28 U.S.C. § 1915A upon receipt
of the full filing fee.
petition for a writ of mandamus, which he brings pursuant to
28 U.S.C. § 1361, asks this court to compel the
Department of Justice to prosecute certain unidentified
prison officials for their handling of his mail. Although a
district court may issue a writ of mandamus under 28 U.S.C.
§ 1361 to compel “an officer or employee of the
United States . . . to perform a duty owed to the plaintiff,
” if may do so only if the duty owed is “a clear
nondiscretionary duty.” Heckler v. Ringer, 466
U.S. 602, 616 (1984); Sutherland v. Leonart, 507
Fed.Appx. 598, 599 (7th Cir. 2013) (“Absent legal
constraints on an agency's discretion, mandamus relief is
an inappropriate remedy to compel an agency to investigate or
prosecute violations of the substantive law it
enforces.”) (citing Wayte v. United States,
470 U.S. 598, 607-08 (1985); Heckler, 466 U.S. at
616; Deloria v. Veterans Admin., 927 F.2d 1009,
1013-14 (7th Cir. 1991)). The Department of Justice's
decision to prosecute an individual is purely discretionary;
therefore, this court cannot use § 1361 to compel
prosecution of Johnson's alleged offenders. See Banks
v. U.S. Attorney, 318 Fed.Appx. 56, 57-58 (3d Cir. 2009)
(affirming dismissal of petition for a writ of mandamus
asking district court to compel federal prosecution of
federal prison officials); Inmates of Attica Corr.
Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir.
1973) (“[F]ederal courts have traditionally, and, to
our knowledge, uniformly unrefrained from overturning, at the
instance of a private person, discretionary decisions of
federal prosecuting authorities not to prosecute persons
regarding whom a complaint of criminal conduct is
Johnson's petition will be dismissed for failure to state
a claim upon which relief can be granted.
Wayne Johnson's motion for leave to proceed in forma
pauperis (dkt. #2) is DENIED.
proposed complaint is DISMISSED for failure to state a claim
upon which relief can be granted.
Johnson's motion for appointment of counsel and to
correct the record (dkt. #3) is DENIED.