Ortega v. INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2000
• Docket: 00-10090
• Status: Unpublished

Opinion

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 -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.