Opinion
8:23-cv-3254-CMC-JDA
08-01-2023
Everald Keith Nelson, Petitioner, v. United States of America, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
Everald Keith Nelson (“Petitioner”) is a prisoner in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated in South Carolina at the Edgefield Federal Correctional Institution (“FCI Edgefield”). Proceeding pro se and in forma pauperis, Petitioner brings this action seeking a writ of mandamus under 28 U.S.C. § 1361. [Doc. 1.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned Magistrate Judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons below, the Petition filed in this matter is subject to summary dismissal.
BACKGROUND
Petitioner commenced this action on June 27, 2023, by filing a Petition seeking mandamus relief along with his BOP “Sentence Monitoring Computation Data” sheet dated June 6, 2023. [Docs. 1; 1-1.] Petitioner alleges he was convicted of conspiracy to engage in the business of dealing with firearms without a license in the United States District Court for the Northern District of Georgia at case number 1:21-cr-171-MHC-2 and sentenced on December 16, 2021, to a term of imprisonment of 48 months followed by 3 years' supervised release. [Doc. 1 at 1.] Petitioner alleges that “[t]he Immigration Agency has placed a detainer on [him] for possible deportation.” [Id.]
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner's envelope is marked as having been received by the prison mailroom at FCI Edgefield for processing on June 27, 2023. [Doc. 1-2.]
The Court takes judicial notice of the records in Petitioner's criminal action in the Northern District of Georgia. See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Petitioner asserts he brings this action to compel “the United States Attorney General and/or the Immigration Services to provide him with an expedited removal proceeding pursuant to the First Step Act of 2018” (the “FSA”). [Id. at 2.] According to Petitioner, he is eligible for home detention on December 3, 2023. [Id.] However, Petitioner contends, the pending detainer will prevent him from participating in the halfway house program because, if he is found to be deportable, he will be turned over to Immigration Services under the FSA. [Id.] Petitioner contends that 18 U.S.C. § 3632(d) requires the Attorney General to expedite removal proceedings in cases such as this one as his “date to be released to the halfway house program is fast approaching and that placement will turn on whether Petitioner will be deported.” [Id. at 4.] As such, Petitioner contends, he “should be [g]ranted an [e]xpedited [r]emoval [p]roceeding to allow the BOP to properly apply his FSA Time Credits and thus, properly adjust [his] sentence.” [Id.]
APPLICABLE LAW
Petitioner filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute, which authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Petitioner is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Petitioner had prepaid the full filing fee, this Court is charged with screening Petitioner's lawsuit to identify cognizable claims or to dismiss the Petition if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Petitioner is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007). 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, 391 (4th Cir. 1990).
DISCUSSION
As noted, Petitioner brings this action seeking a writ of mandamus to compel the United States Attorney General, or other appropriate agency or official, to implement deportation proceedings against him. [Doc. 1 at 5.] Nevertheless, this action is subject to summary dismissal.
Writs of mandamus are drastic remedies to be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); In re Vargas, 723 F.2d 1461, 1468 (10th Cir. 1983); see also In re Cox, 441 Fed.Appx. 145 (4th Cir. 2011). Further, such relief is available only when there are no other means by which the relief sought could be granted and may not be used as a substitute for appeal. In re Beard, 811 F.2d 818, 826 (4th Cir. 1987); In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007). The party seeking mandamus relief carries the heavy burden of showing that his entitlement to such relief is clear and indisputable. Mallard v. U.S. Dist. Court, 490 U.S. 296, 309 (1989); Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); see also United States v. Moussaoui, 333 F.3d 509, 517 (4th Cir. 2003). The United States Court of Appeals for the Fourth Circuit 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) (citation omitted).
Here, Petitioner has not shown that he has a clear and indisputable right to the relief sought or that Respondent has a clear duty to do the specific act requested. While 28 U.S.C. § 1361 provides that federal district courts have original jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States or one of its agencies to perform a duty owed to a petitioner, the duty claimed to be owed by the officer or employee of the United States must be “plainly defined and peremptory” in order for mandamus to issue to compel the performance of such duty. United States v. Helvering, 301 U.S. 540, 543 (1937). Further, mandamus cannot be used to compel the performance of discretionary duties of federal government officers, but will lie only to compel ministerial acts. See Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995); Plato v. Roudebush, 397 F.Supp. 1295, 1304-05 (D. Md. 1975). A ministerial act is one in which the law prescribes and defines a duty to be performed with such precision as to leave nothing to the exercise of discretion or judgment. See Neal v. Regan, 587 F.Supp. 1558, 1562 (N.D. Ind. 1984).
Petitioner's pleadings fail to show a violation by Respondent of a ministerial act. Specifically, Petitioner seeks a court order requiring the Attorney General to expedite deportation proceedings against him. [Doc. 1 at 4-5.] Relevant here, the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., “actually prohibits [Petitioner's] deportation while he is incarcerated.” Murray v. Holder, No. TDC-14-cv-3865, 2016 WL 1071004, at *2 (D. Md. Mar. 17, 2016), aff'd, 656 Fed.Appx. 19 (4th Cir. 2016). And, that statute provides that “[n]othing in [the applicable provisions of the INA] shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.” 8 U.S.C. § 1228(a)(3)(B); see also Wright v. Napolitano, No. 5:10-HC-2056-BO, 2010 WL 5125352, at *1 (E.D. N.C. Dec. 9, 2010) (explaining that “a prisoner [is not] entitled to an expedited hearing, or expedited deportation, th[r]ough a mandamus action”).
Therefore, Petitioner cannot meet either the first or second elements of the mandamus statute because he does not have a clear and indisputable right to the relief he requests and Respondent does not have a clear duty to do the specific act requested. See Wright v. U.S. Dep't of Homeland Sec., No. DKC-09-2840, 2009 WL 3711366, at *2 (D. Md. Nov. 2, 2009) (“Petitioner has no private right of action to compel his immediate removal or immediate consideration for removal prior to the completion of his term of incarceration.”).
In sum, because Petitioner has failed to allege facts showing that he is clearly and indisputably entitled to the relief sought or that Respondent has a clear and indisputable duty to do the specific acts requested, Petitioner has failed to demonstrate the necessary conditions for the issuance of a writ of mandamus, and the Court need not look any further. Therefore, as Petitioner presents no extraordinary circumstances to warrant the drastic remedies of mandamus, the Petition for a writ of mandamus should be dismissed. See Rivera v. U.S. Att'y Gen., No. 4:23-cv-2227-RMC-TER (D.S.C. July 13, 2023), Doc. 14 (recommending denial of a petition for writ of mandamus in a similar case); De La Cruz v. Warden Janson, No. 4:23-cv-2131-MGL-TER (D.S.C. July 18, 2023), Doc. 13 (same).
The undersigned notes that Petitioner has access to the BOP's internal remedy program to address his concerns and, once he has exhausted his administrative remedies, he can pursue relief under 28 U.S.C. § 2241 by filing a petition for writ of habeas corpus. There is no showing that Petitioner has attempted to resolve his concerns with the BOP before asking this Court for the drastic remedy of a writ of mandamus. Heckler v. Ringer, 466 U.S. 602, 616 (1984) (explaining the writ of mandamus is intended to provide a remedy for a petitioner “only if he has exhausted all other avenues of relief and only if the [respondent] owes him a clear nondiscretionary duty”).
CONCLUSION AND RECOMMENDATION
Accordingly, it is recommended that the § 2241 Petition be DISMISSED without prejudice and without requiring the Respondent to file an answer or return.
IT IS SO RECOMMENDED.
Petitioner's attention is directed to the important notice on the next page.
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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).