Opinion
C/A No. 9:18-1743-HMH-BM
09-12-2018
Antonio K. Heard, Petitioner, v. Federal Bureau of Investigation, Respondent.
REPORT AND RECOMMENDATION
The Petitioner, Antonio K. Heard, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983. He is an inmate at the Federal Correctional Institution-Hazelton in West Virginia.
Under established local procedure in this judicial district, a careful review has been made of the pro se Petition pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Hughes v. Rowe, 449 U.S. 5, 9 (1980).
However, even when considered pursuant to this liberal standard, for the reasons set forth hereinbelow this case is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].
Discussion
Prior to filing this Petition, Petitioner was an inmate at the Federal Correctional Institution in Williamsburg, South Carolina (FCI-Williamsburg). In March 2018, Petitioner was charged with "[u]se of the telephone for abuses other than illegal activity which circumvent the ability of staff to monitor frequency of telephone use, content of the call, or the number called." ECF No. 1-1 at 1-2. It appears that Petitioner was accused of using another inmate's telephone account to place a call. Petitioner contends that the incident report was materially altered by CSL Graves at FCI-Williamsburg in an attempt to show that Petitioner was given proper written notice prior to a disciplinary hearing. Petitioner requests that this court issue a writ of mandamus directing the Respondent, the Federal Bureau of Investigation (FBI), to initiate a criminal investigation concerning his disciplinary charge.
Pursuant to 28 U.S.C. § 1361, "[t]he district courts shall have original jurisdiction of 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." However, mandamus is a drastic remedy to be used only in extraordinary circumstances. See Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976); United States v. Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987)["Courts are extremely reluctant to grant a writ of mandamus."]. Mandamus relief is only available when there are no other means by which the relief sought could be granted. In re Blackwater Sec. Consulting, L.L.C., 460 F.3d 576, 592 (4th Cir. 2006)[Mandamus is a drastic remedy to be used only in extraordinary circumstances, when "the petitioner has no other adequate means to obtain relief to which there is a clear and indisputable right."](internal quotations and citation omitted). Further, the party seeking mandamus relief carries the heavy burden of showing that he has no other adequate means to attain the relief he desires, and that his entitlement to such relief is clear and indisputable. In re First Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir.1988)[Mandamus relief is available only when the Petitioner has a clear right to the relief sought]; Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).
The Fourth Circuit Court of Appeals has held that:
[t]he party seeking a writ of mandamus must satisfy the conditions of a rigorous test, demonstrating each and every one of the following requirements: (1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances.In re Braxton, 258 F.3d 250, 261 (4th Cir. 2001)(citing United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502 (4th Cir. 1999)).
Here, Petitioner has not alleged that he has a clear and indisputable right to the relief sought, or any facts indicating that the responding party has a clear duty to do the specific act requested. Petitioner requests that the FBI conduct an investigation of an alleged violation of 18 U.S.C. § 1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy). There is no indication that this statute provides authority for this Court to order such an investigation.
This statute provides:
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.18 U.S.C. §1519.
Nor has Petitioner alleged any facts to indicate there is a private cause of action under this statute. Generally, there is no private cause of action under criminal statutes; see Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000)["The Supreme Court historically has been loath to infer a private right of action from a 'bare criminal statute' because criminal statutes are usually couched in terms that afford protection to the general public instead of a discrete, well-defined group."](quoting in part Cort v. Ash, 422 U.S. 66, 80 (1975)); see also Brett v. Brett, 503 F. App'x. 130, 132 (3d Cir. 2012) ["[C]riminal statutes do not give rise to civil liability."]; while courts have specifically found that a private individual has no claim under § 1591 or other obstruction of justice statutes, 18 U.S.C. §§ 1501 et seq. See, e.g., Bratset v. Davis Joint Unified Sch. Dist., No. 2:16-cv-0035 GEB DB PS, 2017 WL 6484308, at *4 (E.D. Cal. Dec. 19, 2017) [noting that "18 U.S.C. § 1519 is a federal criminal statute that does not provide a private right of action"]; Townsend v. Pub. Storage Inc., No. 1:13-cv-01600, 2014 WL 1764432, at *4-5 (N.D.N.Y. Apr. 30, 2014)[stating "Plaintiff may not bring her action as a claim for obstruction of justice under any of the statutes in the section on obstruction of justice"]; Hopson v. Shakes, No. 3:12CV-722-M, 2013 WL 1703862, at *2 (W.D. Ky. Apr. 19, 2013) ["The federal obstruction of justice statutes, 18 U.S.C. §§ 1501 et seq., do not provide for a private cause of action or civil remedies"]; Peavey v. Holder, 657 F.Supp.2d 180, 190 (D. D.C. 2009)["to date, no circuit or Supreme Court opinion has held that § 1519 creates a private right of action"].
Further, to the extent that Petitioner is requesting that CSL Graves be criminally prosecuted, an individual such as the Petitioner here has no constitutional right to, or in fact any judicially cognizable interest in, the criminal prosecution or non-prosecution of another person. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)[A private citizen does not have a judicially cognizable interest in the prosecution or nonprosecution of another person]; Diamond v. Charles, 476 U.S. 54, 64-65 (1986) [applying Linda R.S. v. Richard D. and collecting cases]; Collins v. Palczewski, 841 F.Supp. 333, 340 (D.Nev.1993) ["Long ago the courts of these United States established that 'criminal statutes cannot be enforced by civil actions.'"].
Petitioner may be attempting to challenge his disciplinary conviction, for which he may be able to file a petition under 28 U.S.C. § 2241. However, this is not the proper court for Petitioner to bring such an action, as a § 2241 petition must be filed in the district of incarceration. See 28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir. 2000); see also 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 434-35 (2004)[A petition under § 2241 must be brought against the warden of the facility where the prisoner is being held]. Additionally, Petitioner should note that although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973)[requiring exhaustion in 28 U.S.C. § 2241 matter]; Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) [noting courts require "exhaustion of alternative remedies before a prisoner can seek federal habeas relief"] (internal quotation marks omitted). Exhaustion allows prison officials to develop a factual record and "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones v. Bock, 549 U.S. 199, 204 (2007).
Certain procedural safeguards apply when loss of statutory good-time credit is at issue. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). In Wolff, the Supreme Court set out the requirements for due process in prison disciplinary hearings:
1. Giving the prisoner written notice of the charges at least 24 hours before he appears for his disciplinary hearing;Id. at 563-76. Additionally, DHO findings revoking a prisoner's good-time credit must be supported by "some evidence in the record." Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985).
2. Providing the prisoner a written statement by the fact finder(s) as to the evidence relied on and reasons for the disciplinary action;
3. Allowing the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be an undue hazard to institutional safety or correctional goals;
4. Permitting the prisoner the aid of a fellow prisoner, or if that is forbidden, aid from staff or a competent inmate designated by staff, if the prisoner is illiterate or the complexity of the issue makes it unlikely that the prisoner will be able to collect and present the evidence necessary for an adequate comprehension of the case; and
5. Providing impartial fact finders.
Notably, because at least some of Petitioner's pleading deficiencies could possibly be corrected by amendment, see, e.g., Brockington v. South Carolina Dept. of Social Service, No. 17-1028, 2017 WL 1531633 (4th Cir. April 28, 2017) [Noting that pro se Plaintiff should be provided an opportunity to amend his complaint to cure defects prior to a dismissal]; Evans v. Richardson, No. 17-1144, 2017 WL 2294447 (4th Cir. May 25, 2017) [same]; Breyan v. All Medical Staff, No. 17-6186, 2017 WL 2365232 (4th Cir. May 31, 2017) [same], Petitioner was given an opportunity to file an amended complaint. In an order dated August 14, 2018, Petitioner was specifically warned, as discussed above, that he failed to allege facts to show that a writ of mandamus should issue, that he had no right to request a criminal prosecution of CSL Graves, and to the extent that he was challenging his incarceration he needed to file any § 2241 petition in his district of incarceration (which is not this district) after exhausting his available administrative remedies. Petitioner was directed to file any amended complaint within twenty-one (21) days, and was specifically warned that if he failed to file an amended complaint, a recommendation for dismissal would be entered. Order, ECF No. 6. However, Petitioner has not filed an amended complaint.
Finally, it should be noted that Petitioner has failed to bring his case into proper form. In the order dated August 14, 2018, Petitioner was given an opportunity to pay the filing fee or submit an Application to Proceed Without Prepayment of Fees and Affidavit (Form AO 240) and Financial Certificate and to provide the necessary information and paperwork, to include forms necessary to effect service, to bring the case into proper form for evaluation and possible service of process. ECF No. 5. Although Petitioner provided some documents (Application to Proceed Without Prepayment of Fees and Affidavit and Financial Certificate), he only provided partially completed documents for service (he failed to provide addresses where service is to be made). Petitioner was specifically warned that failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. See Fed. R. Civ. P. 41. Thus, in the alternative, it is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) [holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion].
Recommendation
Based on the foregoing, it is recommended that the Court dismiss the Petition without prejudice and without issuance and service of process. Petitioner's attention is directed to the important notice on the next page.
s/Bristow Marchant
Bristow Marchant
United States Magistrate Judge September 12, 2018
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).