Timothy Dewayne Littlejohn v. Director, Federal Bureau of Investigation ( 2023 )


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  • USCA11 Case: 21-13542    Document: 34-1     Date Filed: 03/01/2023   Page: 1 of 6
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-13542
    Non-Argument Calendar
    ____________________
    TIMOTHY DEWAYNE LITTLEJOHN,
    Petitioner-Appellant,
    versus
    DIRECTOR, FEDERAL BUREAU OF INVESTIGATION,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    D.C. Docket No. 1:21-cv-02321-MLB
    ____________________
    USCA11 Case: 21-13542         Document: 34-1          Date Filed: 03/01/2023         Page: 2 of 6
    2                           Opinion of the Court                        21-13542
    Before ROSENBAUM, BRASHER, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Timothy Littlejohn appeals the district court’s dismissal of
    his 
    28 U.S.C. § 1361
     mandamus petition for failure to pay the full
    filing fee in accordance with the three-strikes provision of 
    28 U.S.C. § 1915
    (g).
    We review de novo the interpretation of § 1915(g). Brown
    v. Johnson, 
    387 F.3d 1344
    , 1347 (11th Cir. 2004). We liberally con-
    strue the filings of pro se litigants. Tannenbaum v. United States,
    
    148 F.3d 1262
    , 1263 (11th Cir. 1998). We may affirm on any ground
    supported by the law and the record. United States v. Campbell,
    
    26 F.4th 860
    , 879 (11th Cir. 2022) (en banc).
    Section 1915 governs proceedings in forma pauperis (“IFP”),
    under which prisoners may proceed without prepayment of the fil-
    ing fee and instead pay the fee in installments. 
    28 U.S.C. § 1915
    (a)(2), (b). However, “to curtail abusive prisoner litigation,”
    § 1915(g) withholds IFP status from prisoners who bring a “civil ac-
    tion” if they have three or more prior meritless lawsuits or appeals,
    unless they are in imminent danger.1 Dupree v. Palmer, 
    284 F.3d 1
     Section 1915(g) states,
    In no event shall a prisoner bring a civil action or appeal a judg-
    ment in a civil action or proceeding under this section if the
    prisoner has, on 3 or more prior occasions, while incarcerated
    USCA11 Case: 21-13542       Document: 34-1         Date Filed: 03/01/2023       Page: 3 of 6
    21-13542                 Opinion of the Court                             3
    1234, 1236 (11th Cir. 2002); see 
    28 U.S.C. § 1915
    (g); White v.
    Lemma, 
    947 F.3d 1373
    , 1377 (11th Cir. 2020). “After the third mer-
    itless suit, the prisoner must pay the full filing fee at the time he
    initiates suit.” Dupree, 
    284 F.3d at 1236
    . (quotation marks omit-
    ted).
    In his petition, Littlejohn sought to compel the Federal Bu-
    reau of Investigation (“FBI”) and a U.S. Attorney to take action
    against mail fraud and Racketeer Influenced and Corrupt Organi-
    zations Act (“RICO”) crimes allegedly committed by various public
    officials in Cobb County in relation to state criminal proceedings
    against him. Littlejohn also described instances of being beaten by
    jail officers and forcibly medicated with Haldol, an antipsychotic
    medication.
    Because Littlejohn was an inmate who sought leave to pro-
    ceed IFP, the district court considered the three-strikes provision.
    See 
    28 U.S.C. § 1915
    (g). It found that Littlejohn was a serial litigant
    who, while detained, had filed forty cases in the Northern District
    of Georgia since March 2021, the majority of which were dismissed
    as frivolous. It also determined that Littlejohn had failed to raise
    any allegation of imminent danger. And it overruled his objection
    or detained in any facility, brought an action or appeal in a
    court of the United States that was dismissed on the grounds
    that it is frivolous, malicious, or fails to state a claim upon
    which relief may be granted, unless the prisoner is under im-
    minent danger of serious physical injury.
    USCA11 Case: 21-13542       Document: 34-1       Date Filed: 03/01/2023      Page: 4 of 6
    4                        Opinion of the Court                   21-13542
    that the § 1361 mandamus petition was not a “civil action” subject
    to § 1915(g). Finally, the court explained that Littlejohn could not
    use the courts to exercise control over the investigation and prose-
    cution of others.
    Based on a liberal construction of his briefing on appeal, in-
    cluding the motions and other documents he has submitted, Lit-
    tlejohn maintains that various state actors (and now federal judges)
    have committed crimes against him, and he asserts that he has a
    clear legal right to file a complaint with the FBI. He contends that
    the Supreme Court left the “mandamus door open” under
    § 1915(g), relying on excerpts from Miller v. Donald, 
    541 F.3d 1091
    (11th Cir. 2009). He also asserts that he is in imminent danger,
    claiming he has been attacked several times since filing this lawsuit.
    He does not dispute his status as a three-striker.
    As Littlejohn notes, we have not addressed whether or in
    what circumstances mandamus petitions are “civil actions” subject
    to § 1915(g). Other circuits have held that a mandamus petition
    qualifies as a civil action if it is analogous to or arises out of a civil
    lawsuit to which § 1915(g) applies, such as a challenge to prison
    conditions. See In re Crittenden, 
    143 F.3d 919
    , 920 (5th Cir. 1998)
    (“[T]he nature of the underlying action . . . determine[s] the ap-
    plicability of [§ 1915(g)].”); Martin v. United States, 
    96 F.3d 853
    , 854
    (7th Cir. 1996) (whether a petition for mandamus falls within
    § 1915(g) “turn[s] on whether the litigation in which it is being filed
    is within that scope”); In re Nagy, 
    89 F.3d 115
    , 117 (2d Cir. 1996)
    (reasoning that prisoners should not be able to avoid § 1915(g)
    USCA11 Case: 21-13542      Document: 34-1     Date Filed: 03/01/2023     Page: 5 of 6
    21-13542               Opinion of the Court                         5
    simply by bringing 
    42 U.S.C. § 1983
     civil rights claims under the
    guise of seeking mandamus). But if the mandamus petition seeks
    relief in relation to a criminal proceeding, § 1915(g) may not apply.
    See Martin, 
    96 F.3d at 854
     (“A petition for mandamus in a criminal
    proceeding is not a form of prisoner litigation.”).
    Here, Littlejohn’s petition raises both allegations analogous
    to a civil lawsuit, concerning his conditions of confinement, and
    allegations about invalid state criminal proceedings. So if we
    adopted the framework we just described, he arguably could pro-
    ceed in part on his petition, notwithstanding § 1915(g). We need
    not decide that issue, though, because even assuming that Lit-
    tlejohn’s mandamus petition was not subject to § 1915(g), or that
    he otherwise could meet the exception for “imminent danger, his
    petition was properly dismissed because “it is clear that no writ of
    mandamus could properly issue in this case.” Heckler v. Ringer,
    
    466 U.S. 602
    , 616 (1984). We affirm on that alternative ground. See
    Campbell, 26 F.4th at 879.
    Littlejohn sought relief under § 1361, which grants the dis-
    trict courts jurisdiction over “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
    . This section codifies the common-law writ of mandamus
    and permits relief “only if [a petitioner] has exhausted all other av-
    enues of relief and only if the defendant owes him a clear nondis-
    cretionary duty.” Heckler, 
    466 U.S. at
    616–17.
    USCA11 Case: 21-13542         Document: 34-1        Date Filed: 03/01/2023         Page: 6 of 6
    6                          Opinion of the Court                      21-13542
    Here, Littlejohn cannot show that either the FBI or the U.S.
    Attorney owes him a clear nondiscretionary duty to investigate or
    prosecute Cobb County employees, or any other person. 2 As the
    Supreme Court has explained, “a private citizen lacks a judicially
    cognizable interest in the prosecution or nonprosecution of an-
    other.” Linda R.S. v. Richard D., 
    410 U.S. 614
    , 619 (1973). Federal
    courts also lack the authority to control prosecutorial discretion
    through mandamus. Otero v. U.S. Atty. Gen., 
    832 F.2d 141
    , 141
    (11th Cir. 1987). Accordingly, Littlejohn has not offered any
    grounds on which to grant the extraordinary relief of mandamus.
    For these reasons, we affirm the dismissal of Littlejohn’s
    mandamus petition.3
    AFFIRMED.
    2 To the extent Littlejohn raised claims against the state or private actors he
    accuses of crimes, he faces other obstacles. First, they are not “officer[s] or
    employee[s] of the United States,” so 
    28 U.S.C. § 1361
     does not permit relief
    against them. And second, he appears to have other avenues of relief availa-
    ble, such as a complaint under 
    42 U.S.C. § 1983
     or the ordinary review proce-
    dures available to criminal defendants under state law. That any complaint in
    federal court under § 1983 would be subject to 
    28 U.S.C. § 1915
    (g) does not
    amount to a denial of access to that remedy. See Medberry v. Butler, 
    185 F.3d 1189
    , 1194 (11th Cir. 1999) (noting that Ҥ 1915(g) does not deny prisoners the
    right of access to the courts; it merely requires them to pay the filing fee im-
    mediately and in full rather than on an installment plan”).
    3 We DENY Littlejohn’s motions to refer the matter to law enforcement, to
    hear oral argument, to order his placement in protective custody, to suspend
    the rules, and to appoint a special master.