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Eric Myrieckes v. Donna Zickefoose

July 14, 2011

ERIC MYRIECKES, PETITIONER,
v.
DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Bumb, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner, Eric Myrieckes, confined at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey, at the time he filed this petition, seeks to bring this "Action to Compel An Officer of the United States to Perform Duties," and asserts violations of his constitutional rights. Approximately fifteen days after filing his petition, Petitioner filed a letter with the Court notifying the Court that he was scheduled to be transferred to a different prison. One month after that, he filed a notice of address change with the Court.

Petitioner has filed neither an application to proceed in forma pauperis, nor the $350.00 filing fee. For this reason, his petition must be administratively terminated for failure to pay the filing fee or to apply to proceed in forma pauperis. Petitioner may submit the fee or in forma pauperis application, which will be provided by the Court, to have his action reopened.*fn1 However, the Court adds the following, concerning the merits of the petition.

BACKGROUND

Petitioner seeks a writ of mandamus compelling respondent Zickefoose, the warden of the FCI Fort Dix to act. Petitioner complains that while housed in the Special Housing Unit ("SHU") at FCI Fort Dix, his constitutional rights are violated because of limitations placed on purchasing certain items. He asks this Court to direct Respondent to allow him:

... access to purchase safety pens and paper, or be supplied a safety pen and enough paper to handle his legal and family obligations. Petitioner seeks a reasonable rotation and amount of time in the law library with proper working equipment and a law clerk. Petitioner seeks access to purchase regular envelopes and legal envelopes or to be supplied them for his law briefs. And all other reasonable remedies- attorney call, family call, notary- and equal protection under the law.

Petition, ¶ 11.

DISCUSSION

A petition for writ of mandamus is subject to screening pursuant to 28 U.S.C. § 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. See, e.g., Martin v. Grimshaw, 198 F.3d 248 (Table), 1999 WL 1021705 (6th Cir. 1999) (mandamus action under § 1631 is a "civil action" for purposes of Prison Litigation Reform Act); In re Nagy, 89 F.3d 115, 116 (2d Cir. 1996) (PLRA applies to mandamus petitions that seek relief analogous to civil rights complaints). In this case, Petitioner has not submitted the $350.00 filing fee, or a request to proceed in forma pauperis. Therefore, his case must be administratively terminated.

Alternatively, for the reasons set forth below, the Court concludes that the mandamus petition is otherwise subject to dismissal. See Thompson v. Sheriff of Broward County, 2007 WL 419352 (S.D. Fla. Feb. 5, 2007) (collecting cases). Cf. Madden v. Myers, 102 F.3d 74, 76-66 n.2 (3d Cir. 1996) (declining to decide whether PLRA applies to § 1361 mandamus petitions) 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 motion for § 1361 writ of mandamus against Bureau of Prisons, and dismissing appeal under § 1915(e)(2)(B)).

1. Mootness

Petitioner has not asked for monetary relief. Thus, Petitioner's transfer to another facility renders his claims moot. Federal courts are not empowered to decide moot issues. See U.S. CONST. art. III, § 2, cl. 1.; Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001)(citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). To avoid mootness, a controversy must exist at all stages of review. See id. (citing New Jersey Turnpike Auth. V. Jersey Central Power & Light, 772 F.2d 25, 31 (3d Cir. 1985)). "Mootness has two aspects: (1) the issues presented are no longer 'live' or (2) the parties lack a cognizable interest in the outcome." Id. (quoting New Jersey Turnpike Auth., 772 F.2d at 31). In the instant case, as Petitioner does not seek monetary relief, he cannot ...


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