United States District Court, D. Utah, Central Division
TRIGINAL D. JACKSON, Plaintiff,
STATE OF UTAH, Defendant.
J. Shelby District Judge
REPORT AND RECOMMENDATION TO DENY MOTION FOR WRIT OF
MANDAMUS (ECF NO. 3)
J. Furse United States Magistrate Judge
October 12, 2018, pro se Plaintiff Triginal D. Jackson,
proceeding in forma pauperis, filed a petition for a
writ of mandamus under 28 U.S.C. § 1651(a). (Writ of
Certiorari/Mandamus (“Pet.”), ECF No. 3.) Mr.
Jackson filed his petition “based on denial of [his]
right to visitation with [his] daughter, denial of discovery
and Prosecutorial Misconduct as to Ms. Doherty.”
(Id. at 28.) Mr. Jackson seeks an Order from this
Court dismissing the Utah Third District
Juvenile Court case regarding his daughter and restoring all
of his parental rights to his daughter, specifically his
custody and/or visitation rights. (Id. at 10-14,
32.) On November 14, 2018, the Court held a hearing on the
Petition. (ECF No. 8.) After considering the Petition and
oral argument, the undersigned RECOMMENDS the District Judge
DENY the Petition as outside the District Court's
authority to grant relief. Additionally, to the extent the
undersigned construes Mr. Jackson's request as one for
injunctive relief, the undersigned RECOMMENDS the District
Judge DENY Mr. Jackson's request because the
Younger abstention doctrine bars this Court from
adjudicating his request.
court construes the filings of a pro se plaintiff liberally
and holds him “to a less stringent standard than formal
pleadings drafted by lawyers, ” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), a pro se
plaintiff must “ ‘follow the same rules of
procedure that govern other litigants.' ”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005) (quoting Nielsen v. Price,
17 F.3d 1276, 1277 (10th Cir. 1994)). Thus, a pro se
“plaintiff still has ‘the burden of alleging
sufficient facts on which a recognized legal claim could be
based.' ” Jenkins v. Currier, 514 F.3d
1030, 1032 (10th Cir. 2008) (quoting Hall, 935 F.2d
at 1110). While the court must make some allowances for
“the [pro se] plaintiff's failure to cite proper
legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity
with pleading requirements[, ]” Hall, 935 F.2d
at 1110, the court cannot act as the litigant's advocate,
supply additional factual allegations, or develop a legal
theory for him. See, e.g., Smith v.
United States, 561 F.3d 1090, 1096 (10th Cir. 2009).
Jackson alleges the State of Utah (“the State”)
stripped him of custody of his daughter, L.H., without notice
while he spent time in jail. (Pet., ECF No. 3 at 10-13.) At
oral argument, Mr. Jackson stated while both he and
L.H.'s mother spent time in jail, L.H.'s mother gave
L.H. to her grandmother, who in turn sent L.H. out of state
to live with L.H.'s uncle and L.H.'s uncle's
wife. No. one sought Mr. Jackson's consent to take L.H.
out of state. (Id. at 13-14.) Mr. Jackson further
alleges the presiding judge over L.H.'s juvenile
proceedings, holds hearings once a month, without his
presence or L.H.'s mother's presence, to determine
where L.H. will reside. (Id. at 12.) The State
justified depriving Mr. Jackson visitation with L.H. on the
grounds that Mr. Jackson's time in jail endangered
L.H.'s welfare. (Id. at 16-18.) Mr. Jackson
stated at oral argument that he brought his case into federal
court because the state court failed to take any action to
address the facts of his case. The documents Mr. Jackson
attaches to his Petition indicate that the state court did
not terminate his parental rights and that the court granted
him visitation, albeit supervised. (ECF No. 3-1 at 3, 7.) Mr.
Jackson further indicated at the hearing that he proceeds pro
se because he mistrusts attorneys. By the time of the oral
argument, Mr. Jackson was no longer in jail.
Jackson seeks a writ of mandamus pursuant to 28 U.S.C. §
1651, which states, “[t]he Supreme Court and all courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). However, 28 U.S.C. § 1651 does
not serve as a source of jurisdiction. See United States
v. Denedo, 556 U.S. 904, 914 (2009) (“The
authority to issue a writ under the All Writs Act is not a
font of jurisdiction.”). Instead, § 1651
“provides a means to correct an action within the
court's jurisdiction.” United States v.
Tinajero-Porras, 304 Fed.Appx. 754, 756 (10th Cir. 2008)
(unpublished) (citing Commercial Sec. Bank v. Walker Bank
& Trust Co., 456 F.2d 1352, 1355 (10th Cir. 1972)).
Furthermore, before the Court can take any action on a case,
it must determine that it has subject matter jurisdiction,
even if no party contests its jurisdiction. Arbaugh v. Y
& H Corp., 546 U.S. 500, 514 (2006).
matter jurisdiction arises when a “ ‘civil
action aris[es] under the Constitution, laws, or treaties
of the United States.' ” Firstenberg v. City of
Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) (quoting
28 U.S.C. § 1331). Reading Mr. Jackson's petition
liberally, Hall, 935 F.2d at 1110, the undersigned
finds Mr. Jackson's petition arises under the Fourteenth
Amendment to the United States Constitution because it seeks
to vindicate his fundamental right to parent his child.
(See Pet., ECF No. 3 10-14; see Troxel v.
Granville, 530 U.S. 57, 66 (2000) (stating “the
Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children.”).) Thus,
because the Complaint arises under the United States
Constitution, this Court has subject matter jurisdiction over
the case. However, this Court lacks authority to grant Mr.
Jackson mandamus relief.
WRIT OF MANDAMUS
Congress established federal district courts, district courts
lack the power to issue writs of mandamus. Federal Rule of
Civil Procedure 81 eliminated the writ of mandamus.
Fed.R.Civ.P. 81(b); see also 12 Charles Alan Wright,
Arthur R. Miller, Richard L. Marcus, FED. PRACTICE &
PROC. § 3134 (3d ed. 2018) (stating “Rule 81(b)
… abolished the writ of mandamus in district court
practice.”). Rule 81(b), however, empowers district
courts to enter “relief ‘in the nature of
mandamus' ” provided a party pursues
“appropriate action or motion”, and “the
district court has jurisdiction.” Fed.R.Civ.P. 81(b);
12 Charles Alan Wright, Arthur R. Miller, Richard L. Marcus,
FED. PRACTICE & PROC. § 3134 n. 8 (3d ed. 2018)
(citing Sanchez-Espinoza v. Reagan, 770 F.2d 202,
207 n. 7 (D.C. Cir. 1985)).
Mr. Jackson seeks an Order from this Court dismissing the
Utah Third District Juvenile Court case regarding his
daughter and restoring his custody and/or visitation rights
over his daughter. (Pet., ECF No. 3 at 10-14, 28, 32.) Thus,
in essence, Mr. Jackson seeks an injunction against the Utah
Third District Juvenile Court. Accordingly, the undersigned
construes Mr. Jackson's petition as a motion for
injunctive relief. Mical Commc'ns., Inc. v. Sprint
Telemedia, Inc., 1 F.3d 1031, 1036 (10th Cir. 1993)
(“[a] motion for injunctive relief now takes the ...