Frederic Scott v. New , 387 F. App'x 469 ( 2010 )

Case: 09-10672 Document: 00511177960 Page: 1 Date Filed: 07/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 19, 2010
No. 09-10672
Summary Calendar Lyle W. Cayce
Clerk
FREDERIC EMANUEL SCOTT,
Plaintiff-Appellant
v.
FNU NEW, Federal Case Manager; FNU DUCHENE, Federal Case Manager
Coordinator; R CHANDLER, FCI Warden; G MALDONADO, JR., Regional
Director of the Bureau of Prisons; M MUKASEY, US Attorney General; FNU
DOE, 1 through 10
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:08-CV-168
Before PRADO, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Frederic Emanuel Scott, federal prisoner # 08293-091, moves this court for
leave to proceed in forma pauperis (IFP) in his appeal from the district court’s
denial of his petition for writ of mandamus against various prison officials and
the United States Attorney General. Scott alleged that he should be transferred
to a lower-security prison, that his prison security status should be reclassified,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-10672
and that prison officials should correct inaccurate information in his prison file.
The district court dismissed Scott’s petition because he had failed to satisfy the
requirements for mandamus relief.
On appeal, Scott argues that the district court erred in ordering him to pay
two filing fees and reiterates his underlying claims that he is entitled to
mandamus relief.
Scott’s first argument is without arguable merit because the district court
did not order Scott to pay two filing fees. Additionally, regardless of IFP status,
Scott is required to pay the full district court filing fee pursuant to 28 U.S.C.
§ 1915(b)(1).
Scott’s second argument is likewise without arguable merit. The writ of
mandamus is an extraordinary remedy available only where the petitioner
establishes “(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). It is not available to review the
discretionary acts of officials. Giddings v. Chandler, 979 F.2d 1104, 1108 (5th
Cir. 1992). A district court’s denial of mandamus relief is reviewed under an
abuse of discretion standard. Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir.
2002).
Scott is not entitled to the extraordinary remedy of a writ of mandamus
because he has not shown that he has a clear right to be transferred to a
different facility and that prison officials have a clear duty to transfer him. In
re Stone, 118 F.3d at 1034. Additionally, because prison classification “is a
matter left to the discretion of prison officials,” Scott is not entitled to mandamus
relief regarding his claim that prison officials should reclassify his prison status.
Wilkerson v. Stalder, 329 F.3d 431, 436 (5th Cir. 2005) (internal quotations and
citation omitted); Giddings, 979 F.2d at 1108. Finally, Scott is not entitled to
mandamus relief regarding his claim that inaccurate information in his prison
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No. 09-10672
file should be corrected because he has failed to brief this issue. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
Based on all of the foregoing, Scott’s request to proceed IFP should be
denied. His appeal is without arguable merit and is therefore frivolous. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Because the appeal is
frivolous, it should be dismissed. See 5 TH C IR. R. 42.2.
This court’s dismissal of the instant appeal and the district court’s
dismissal each count as a strike for purposes of § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Scott is warned that if he
accumulates three strikes, he will be barred from proceeding IFP in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See id.MOTION DENIED; APPEAL DISMISSED; THREE STRIKES WARNING
ISSUED.
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