OpenJurist

97 F3d 1464 Davis v. Doe

97 F.3d 1464

Lonnie B. DAVIS and Stephen D. Harris, Petitioners-Appellants,
v.
John DOE, Special Agent in Charge, Supervisor of the
Oklahoma City, Oklahoma Office of the Federal
Bureau of Investigation, Respondent-Appellee.

No. 96-6060.

(W. Dist. Of Oklahoma)
(D.C.No. CIV-95-1913-C)

United States Court of Appeals, Tenth Circuit.

Sept. 24, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

1

ORDER AND JUDGMENT*

2

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

3

Petitioners Stephen D. Harris and Lonnie B. Davis, state prisoners proceeding pro se and in forma pauperis, appeal the dismissal of their Joint Application For Issuance of Writ of Mandamus. The district court dismissed the Joint Application under 28 U.S.C. § 1915(d), finding that it was legally frivolous. We affirm.

4

Petitioners brought their Joint Application under 28 U.S.C. § 1351, seeking a writ of mandamus directing the Special Agent in Charge of the Oklahoma office of the Federal Bureau of Investigation "to acknowledge receipt of their correspondence and inform them of [the FBI's] intentions regarding an investigation into the disappearance of their legal mail." The district court referred the Joint Application to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) for initial proceedings. The magistrate judge recommended that Petitioners' Joint Application be dismissed as frivolous because the Petitioners could not show a clear entitlement to the relief that they seek or a nondiscretionary duty on the part of the Respondent Special Agent to act. See Mallard v. United States District Court, 490 U.S. 296, 309 (1989) (holding that petitioner for writ of mandamus must show by clear and indisputable evidence that writ should issue). After de novo review, the district court adopted the magistrate judge's Report and Recommendation. Petitioners appeal.

5

"Mindful that pro se actions are held to a less stringent standard of review and that sua sponte dismissals are generally disfavored by the courts, we nonetheless allow a complaint to be dismissed under § 1915(d) 'if the plaintiff cannot make a rational argument on the law and facts in support of his claim.' " Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir.1987)(quoting Van Sickle v. Holloway, 791 F.2d 1431, 1434 (10th Cir.1986)). We review a district court's dismissal under section 1915(d) for an abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

6

Because Petitioners claims clearly have no basis in law, the district court did not abuse its discretion in dismissing their Joint Application under section 1915(d). See Neitzke v. Williams, 490 U.S. 319, 327 (1989) (holding that in forma pauperis complaint is frivolous if it embraces an "indisputably meritless legal theory"). Finding no abuse of discretion, the judgment of the United States District Court for the Western District of Oklahoma is hereby AFFIRMED for substantially the reasons set out in the magistrate judge's Report and Recommendation, filed on December 21, 1995, and the district court's Order, filed January 31, 1996.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3