United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge
the Court is a petition for writ of mandamus filed by pro se
Plaintiff Samuel Roy Abram (“Abram”)
(#11398-002). Abram is an inmate in the custody of the United
States Bureau of Prisons (“BOP”), incarcerated at
the United States Penitentiary in Pollock, Louisiana
(“USP-P”). Abrams complains about the quality of
food served to prisoners.
seeks a court order directing the respondent to enforce BOP
Program Statement 4700.06, which provides: “All inmates
and staff, except those on medical or religious diets, should
be served the same meals in a dining room setting when
consistent with the security and orderly operation of the
institution.” (Doc. 1). Abram complains that USP-P
staff and inmates are not provided the same meals. Abram
alleges staff members receive better quality food than
Law and Analysis
the writ of mandamus was abolished by Rule 81(b) of the
Federal Rules of Civil Procedure, federal courts may issue
all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law. See 28 U.S.C. § 1651. Actions in the
nature of mandamus are provided for in § 1361:
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.
28 U.S.C. § 1361.
successful on his request for mandamus relief, Abram must
demonstrate: (1) a clear right to the relief; (2) a clear
duty by the respondent to do the act requested; and (3) the
lack of any other adequate remedy. In Re: Stone, 118
F.3d 1032, 1034 (5th Cir. 1997). “The common-law writ
of mandamus, as codified in 28 U.S.C. § 1361, is
intended to provide a remedy for a plaintiff only if he has
exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.”
Heckler v. Ringer, 466 U.S. 602, 616 (1984).
cannot show a clear right to relief. Abram seeks a court
order directing the respondent to enforce a BOP program
statement. However, Abram has provided no authority for his
claim that a failure to follow BOP policies and procedures
entitles him to mandamus-type relief. In fact, the Fifth
Circuit has ruled that a failure to follow BOP policies and
procedures, as set forth in various program statements, does
not, in and of itself, state a constitutional violation.
See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
Abram has other adequate remedies available to him for his
claim, such as an action pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). See Aunhkhotep v.
Pearson, 5:09-cv-103, 2010 WL 3879960, at *1 (S.D.Miss.
Mar. 3, 2010), report and recommendation adopted, 2010 WL
3879400 (petition for writ of mandamus dismissed because
Plaintiff could file Bivens action) (citing
James v. Reese, No. 5:05-cv-155, 2006 WL 3930811, at
*1 (S.D.Miss. Oct. 25, 2006) (petition for writ of mandamus
dismissed because Plaintiff had other avenues to seek relief,
including BOP's administrative remedy program or
has filed several civil cases in federal court, at least
three of which were dismissed as frivolous, malicious, or for
failing to state a claim for which relief can be granted.
Thus, pursuant to the Prison Litigation Reform Act
(“PLRA”),  Abrams cannot proceed in forma
papueris unless he is in imminent danger of serious
physical injury. This Court has previously denied Abram leave
to proceed in forma pauperis. (1:16-cv-1317). Abrams
cannot circumvent the restrictions of the PLRA by labeling a
new civil claim a “writ of mandamus.”
“it is important to remember that issuance of the writ
is in large part a matter of discretion with the court to
which the petition is addressed.” Kerr v. U.S.
Dist. Ct. for N. Dist. of California, 426 U.S. 394, 403
(1976). The Court does not ...