                                                  n




                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA                                  FILED
                                                                                             JUN 30 2010
Gregory T. Howard,                            )                                      ClerkUs o·
                                              )                                        Bankr· .strict and
                                                                                               Uptcy Courts
                 Plaintiff,                   )
                                              )
       v.                                     )       Civil Action No.
                                              )
United States District Court for the          )
District of Columbia and District Judge       )                                It 111.1
Colleen Kollar-Kotelly,                       )
                                              )
                 Defendants.                  )


                                   MEMORANDUM OPINION

       This matter is before the Court on review of plaintiff s pro se complaint and application

to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915(e), the Court is required to dismiss a

complaint upon a determination that it is frivolous, malicious or fails to state a claim upon which

relief can be granted. 28 U.S.c. § 1915(e)(2)(B)(i)-(ii). The Court will dismiss this case on all

three grounds.

       Plaintiff is a resident of Toledo, Ohio. He seeks the issuance of a writ of mandamus

against United States District Judge Kollar-Kotelly ofthis Court to compel her to vacate the

dismissal order issued on March 30, 2009 in Howard v. United States District Court for the

Southern District of Ohio, Civ. Action No. 09-531 (CKK) ("Howard I"), and to transfer that case

to the Southern District of Ohio. The complaint fails to state a claim because the mandamus

statute applies to "officer[s] or employee[s] of the United States or any agency thereof[,]" 28

U.S.C. § 1361, as to "matters arising in the executive branch and its administrative agencies."

Seltzer v. Foley, 502 F. Supp. 600, 602 n.2 (S.D.N.Y. 1980). The complaint is frivolous because
the docket of Howard I, which plaintiff has attached to the current complaint, shows that Judge

Kollar-Kotelly dismissed the case for lack of subject matter jurisdiction, denied plaintiffs

various post-judgment motions, see Minute Order of May 21, 2009, and most recently denied

plaintiff s Rule 60(b) motion seeking the same relief sought in this case and his motion to appeal

in forma pauperis. See Order of April 16, 2010 [Dkt. No. 24]. In addition, the Howard I docket

shows that on July 10, 2009, the United States Court of Appeals for the District of Columbia

Circuit summarily affirmed Judge Kollar-Kotelly's dismissal order, see Dkt. No. 17 (Mandate of

USCA), and plaintiff has attached to the current complaint the D.C. Circuit's most recent order

denying his motion to proceed there in forma pauperis because "[t]he district court correctly

certified that the appeal [from the Rule 60(b) denial] is not taken in good faith." PI.' sEx. 7. A

complaint may be dismissed as frivolous when, as here, "there is indisputably absent any factual

and legal basis for the asserted wrong." Brandon v. District of Columbia Bd. of Parole, 734 F.2d

56, 59 (D.C. Cir. 1984).

        The complaint is malicious because in Howard I, plaintiff was told more than once that

he had no further recourse in this Court and was effectively barred from filing any more post-

judgment motions. See Order of April 16, 2010. Yet, plaintiff persists in beating a dead horse by

filing a new action based on decidedly frivolous issues. See Schwarz v.   us. Dep '/ of Treasury,
131 F. Supp. 2d 142, 148 (D.D.C. 2000) (warning that "[a]ny further attempt to litigate

[repetitive] claim[ s] is [] subject to dismissal as malicious").

       For the foregoing reasons, the complaint will be dismissed with prejudice. A separate

Order accompanies this Memorandum Opinion.


                                                        United

Date: June-V f , 2010

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