United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
civil action is pending before the court on a 28 U.S.C.
§ 1361 petition for writ of mandamus filed by Alvin
Pierre Phillips, an indigent state inmate currently
incarcerated at the Bullock Correctional Facility. In the
instant action, Phillips requests that this “court
order the Defendant . . . to enact by Executive order a
mandatory probationary release provision within the
state's Split Sentence Act” which would result in
the release of certain eligible inmates “near [their]
end of sentence dates determined at ¶ 75% completion of
sentence rate.” Doc. 1 at 2.
Writs Act provides “[t]he Supreme Court and all courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). The Act's statutory language,
“in aid of their respective jurisdictions, does not
empower a district court to create jurisdiction where none
exists.” Gehm v. New York Life Ins. Co., 992
F.Supp. 209, 211 (E.D.N.Y. 1998). Specifically, “a
court may issue orders under the Act only to protect a
previously and properly acquired jurisdiction.”
Id. While the law is well-settled that federal
district courts have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of
the United States or one of its agencies to perform a
specific duty, see 28 U.S.C. § 1361, federal
courts are without jurisdiction to issue writs compelling
action by state officials in the performance of their duties
when mandamus is the relief sought. Davis v.
Lansing, 851 F.2d 72, 74 (2nd Cir. 1988) (“The
federal courts have no general power to compel action by
state officials” and when a plaintiff “expressly
[seeks] relief in the nature of mandamus” a federal
court lacks jurisdiction to grant such relief.) “The
text of the mandamus statute . . . makes clear that a
district court . . . lacks mandamus authority over . . .
state officials.” McClure v. Jones, 2016 WL
6595920, at *1, n. 1 (Nov. 7, 2016).
The Supreme Court has explained that “[t]he remedy of
mandamus is a drastic one, to be invoked only in
extraordinary situations.” Kerr v. U.S. Dist.
Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725
(1976); accord Cheney v. U.S. Dist. Court, 542 U.S.
367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).
“[T]he writ has traditionally been used in the federal
courts only . . . to compel [an inferior federal court or a
federal official] to exercise its authority when it is its
duty to do so.” Kerr, 426 U.S. at 402, 96
S.Ct. 2119 (quotation marks omitted). . . . Issuance of the
writ is largely a matter of discretion with the court to
which the petition is addressed. See Schlagenhauf v.
Holder, 379 U.S. 104, 112 n. 8, 85 S.Ct. 234, 13 L.Ed.2d
In re Amy Unknown, 701 F.3d 749, 757 (5th Cir.
2012). Thus, a federal court has no authority by way of
mandamus to address an action or omission of a state
official. In re Cook, 589 Fed.Appx. 44, 45
(3rd Cir. 2014). Where the only relief sought by a plaintiff
is to compel action by a state official through relief which
is mandamus in nature, this court lacks jurisdiction to grant
the requested relief and should dismiss the petition.
Lawrence v. Miami-Dade County State Attorney Office,
272 Fed.Appx. 781 (11th Cir. 2008); In re Tart, 764
Fed.Appx. 355 (4th Cir. 2019) (holding that a federal court
lacks jurisdiction to grant mandamus relief against state
clear from the foregoing that this court has no mandamus
authority over the Governor of the State of Alabama and,
hence, lacks jurisdiction to grant the mandamus relief sought
petition for writ of mandamus seeking issuance of an order
directing Governor Kay Ivey to enact an Executive Order
amending the Split Sentence Act to include a mandatory
probationary release provision be DENIED.
case be DISMISSED with prejudice.
before June 20, 2019, the
plaintiff may file objections to the instant Recommendation.
The plaintiff must specifically identify the factual findings
and legal conclusions in the Recommendation to which each
objection is made. Frivolous, conclusive, or general
objections will not be considered by the court.
to file written objections to the Magistrate Judge's
findings and recommendations as required by the provisions of
28 U.S.C. §636(b)(1) shall bar a de novo determination
by the District Court of legal and factual issues covered in
the Recommendation. The failure to file written objections
will also waive the right of the plaintiff to challenge on
appeal the District Court's order based on unobjected-to
factual and legal conclusions accepted or adopted by the
District Court except upon grounds of plain error or manifest
injustice. 11TH Cir. R. ...