Guevara v. Provinzino et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Peter Michael Guevara,
Petitioner,
v.
Laura Provinzino; Michelle Margoles;
John Choi; and Unknown Federal
Officials and Supervisory Officials (Does
1-10), in their official capacities only,
Respondents.
Case No. 26-CV-1088 (NEB/SGE)
REPORT AND RECOMMENDATION
Petitioner Peter Michael Guevara was convicted in state court on child-pornography
charges in 2014. See State v. Guevara, No. 71-CR-13-217 (Minn. Dist. Ct.). While on
supervised release for those offenses, Guevara was again found in possession of child
pornography and again prosecuted, this time in federal court. See United States v. Guevara,
No. 21-CR-0241 (NEB/DTS) (D. Minn.). After a jury trial, Guevara was convicted and
sentenced to a 204-month term of imprisonment. See id.
Guevara has filed a petition for a writ of mandamus asking that the Court command
various state and federal officials to conduct an investigation into what Guevara believes
to have been misconduct during those prosecutions. See Dkt. 1. Guevara’s petition is now
before the Court for preliminary review pursuant to 28 U.S.C. § 1915A(a) (“The court shall
review, before docketing, if feasible or, in any event, as soon as practicable after docketing,
a complaint in a civil action in which a prisoner seeks redress from a governmental entity
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or officer or employee of a governmental entity.”).1 As a result of that review, the Court
concludes that Guevara’s petition is frivolous and should be denied accordingly. See 28
U.S.C. § 1915A(b)(1).
“The common law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended
to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and
only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S.
602, 616 (1984) (citations omitted). “Where the right of the petitioner is not clear, and the
duty of the officer, performance of which is to be commanded, is not plainly defined and
peremptory, mandamus is not an appropriate remedy.” United States ex rel. Girard Trust
Co. v. Helvering, 301 U.S. 540, 543 (1937).
Two of the respondents named to this action are a county official and a private
attorney. Under § 1361, however, the power of federal district courts to issue writs of
mandamus extends only “to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” See also Rogers v. Wasko, No.
4:23-CV-4182-RAL, 2023 WL 8355133, at *2 (D.S.D. Dec. 1, 2023) (“By its terms, 28
U.S.C. § 1361 does not apply to state officials.”).
1 Mandamus proceedings, unlike habeas proceedings, are civil actions for purposes of 28
U.S.C. § 1915 and § 1915A where the mandamus petition does not attack the legality of
the petitioner’s confinement. See Rindahl v. United States Attorney’s Office for Minnesota,
No. 18-CV-3237 (JRT/ECW), 2019 WL 1993827, at *3 (D. Minn. May 6, 2019)
(collecting cases); Shelton v. United States Dep’t of Justice, No. 24-CV-2887 (NEB/DTS),
2024 WL 4533350, at *1 (D. Minn. Oct. 21, 2024). Nowhere in Guevara’s petition does he
request invalidation of his convictions or sentences.
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To the extent that Guevara seeks to compel federal officials to act in a specific way,
his mandamus petition is unclear regarding what, specifically, he wants those respondents
to do. What is clear, however, is that what Guevara is requesting the Court to order
respondents to do are decidedly discretionary tasks, such as the initiation of investigations.
These kinds of activities cannot form the basis of a mandamus petition. See Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (noting that “a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”); Shelton v. United
States Dep’t of Justice, No. 24-CV-2887 (NEB/DTS), 2024 WL 4533350, at *1-2 (D.
Minn. Oct. 21, 2024); Mashak v. Minnesota, No. 11-CV-0473 (JRT/JSM), 2012 WL
928225, at *24-25 (D. Minn. Jan. 25, 2012). None of what Guevara seeks in his mandamus
petition falls within the categories of clear, ministerial, non-discretionary tasks that can
properly be commanded through issuance of a writ of mandamus.
The mandamus petition is frivolous and should be denied. Guevara remains
responsible for the $350.00 statutory filing fee for this case, which must be paid in
installments over time. Guevara must pay the unpaid balance of the statutory filing fee for
this action in the manner prescribed by 28 U.S.C. § 1915(b)(2). The Clerk of Court should
be directed to provide notice of this requirement to the authorities at the institution where
Guevara is confined so that the statutory filing fee may be collected.
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY RECOMMENDED THAT:
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1. 	The petition for a writ of mandamus of petitioner Peter Michael Guevara
[Dkt. 1] be DENIED.
2. 	This matter be DISMISSED pursuant to 28 U.S.C. § 1915A(b).
3. 	Guevara’s application to proceed in forma pauperis [Dkt. 2] be DENIED AS
MOOT.
4. 	Guevara’s order for prison officials to be directed to provide a copy of his
prison trust account statement [Dkt. 3] be DENIED AS MOOT.
5. 	Guevara be directed to pay the unpaid balance ($350.00) of the statutory
filing fee for this action in the manner prescribed by 28 U.S.C. § 1915(b)(2),
and the Clerk of Court be directed to provide notice of this requirement to
the authorities at the institution where Guevara is confined.
Dated: February 10, 2026 	s/ Shannon G. Elkins_____
SHANNON G. ELKINS
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits
set forth in Local Rule 72.2(c).
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