Timothy Dewayne Littlejohn v. Director, Federal Bureau of Investigation

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[DO NOT PUBLISH]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
____________________
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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
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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.
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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)
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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.
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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.