Ortega v. INS ( 2000 )

No. 00-10090
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10090
Conference Calendar
PEDRO ORTEGA,
Petitioner-Appellant,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:99-CV-248-C
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April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Pedro Ortega (#84749-080), a federal prisoner, petitioned
the district court for a writ of mandamus compelling the
Immigration and Naturalization Service ("INS") to "drop
deportation proceedings and/or provide a hearing at the earliest
possible time." The district court concluded that Ortega had
failed to state a claim for mandamus relief and entered judgment
dismissing the petition. Ortega appeals.
Mandamus is an extraordinary remedy reserved for
extraordinary circumstances. In re Am. Marine Holding Co., 14
*
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this opinion should not be published and is not precedent except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.
No. 00-10090
-2-
F.3d 276, 277 (5th Cir. 1994). Mandamus may issue only when
(1) the plaintiff has a clear right to relief; (2) the defendant
has a clear duty to act; and (3) there is no other available
remedy. Smith v. North La. Med. Review Ass’n, 735 F.2d 168, 172
(5th Cir. 1984). It is not available to review the discretionary
acts of officials. Giddings v. Chandler, 979 F.2d 1104, 1108
(5th Cir. 1992) (limiting grant of mandamus to actions in which a
clear duty arises under the Constitution or a statute). This
court reviews the denial of a writ of mandamus to determine
whether the petitioner has shown a clear and indisputable right
to the writ. Ingalls Shipbuilding, Inc. v. Asbestos Health
Claimants, 17 F.3d 130, 133 (5th Cir. 1994).
Ortega argues only that the INS has abused its discretion in
failing to hold an immediate deportation hearing in violation of
its own guidelines and that the failure of the INS to hold an
immediate deportation has caused him to suffer "emotional and
psychological stress." Ortega has failed to show that he has a
"clear and indisputable right" to issuance of a writ of mandamus.
Because the appeal is frivolous, it is DISMISSED. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983); 5th Cir. Rule 42.2.
The three strikes provision of 28 U.S.C. § 1915(g) "prohibits
a prisoner from proceeding in forma pauperis ("IFP") if he has
had three actions or appeals dismissed for frivolousness,
maliciousness, or failure to state a claim." Carson v. Johnson,
112 F.3d 818, 819 (5th Cir. 1997). We caution Ortega that once
he accumulates three strikes, he may not proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in
No. 00-10090
-3-
any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
APPEAL DISMISSED.