Opinion
C. A. 4:23-2227-TMC-TER
07-13-2023
Leonel Rivera, #11575-112, Petitioner, v. United States Attorney General, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is an action for writ of mandamus under 28 U.S.C. § 1361. Petitioner is a federal prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the District Court. See 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
Petitioner recently filed a § 2241 action, regarding similar allegations, which has a different fee structure than the instant action. Mandamus actions sound in civil rights actions; thus the applicable filing fee is for a civil rights action. Pinion v. FCI Edgefield, No. 8:20-CV-01352-JFA-JDA, 2020 WL 2308362, at *1 (D.S.C. Apr. 15, 2020), report and recommendation adopted, 2020 WL 2308312 (D.S.C. May 8, 2020)(collecting cases). Further, mandamus actions under 28 U.S.C. § 1361 are not categorized by the Administrative Office of Courts as habeas actions.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915 and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir. 1995); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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). A finding of frivolity can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. at 31. Under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989).
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint may be subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Petitioner has filed an “Emergency Petition for Writ of Mandamus Directing INA to provide Petitioner Expedited Removal Proceedings.” (ECF No. 1). Petitioner is serving a federal sentence of 235 months in BOP custody for conspiracy to possess with intent to distribute cocaine. (ECF No. 1 at 1). Petitioner alleges he has good time credits(GTC) that are not being applied to hasten his release. Petitioner alleges ICE came in March 2023 and the BOP would not release him. (ECF No. 1 at 2). Petitioner has already attempted to pursue relief related to these allegations in a § 2241 action. No. 4:23-cv-1609-TMC. Petitioner's arguments focus on GTC and the First Step Act. (ECF No. 1). Petitioner's request for mandamus relief is that he be turned over to ICE for removal proceedings (ECF No. 1 at 4).
The Mandamus and Venue Act grants federal district courts “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.” 28 U.S.C. § 1361. 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.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). Mandamus is an “extraordinary remedy” and should only be issued if there is a “clear abuse of discretion” or “usurpation of the judicial power.” Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 308-09 (1989). The elements Petitioner must demonstrate are:
(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.U.S. ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999)(citing Kerr v. U.S. Dist. Ct. for N. Dist. of California, 426 U.S. 394, 403 (1976); In re First Fed. Sav. & Loan Ass'n of Durham, 860 F.2d 135, 138 (4th Cir. 1988)).
The “INA actually prohibits his deportation while he is incarcerated.” Murray v. Holder, 2016 WL 1071004, at *2 (D. Md. Mar. 17, 2016), aff'd sub nom., 656 Fed.Appx. 19 (4th Cir. 2016). “Nothing in this section 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.A. § 1228(a)(3)(B). Petitioner cannot meet the first element nor the second. The statute is clear Petitioner does not have a clear and indisputable right to the relief he requests and the Respondent does not have a clear duty to do the specific act requested. See Wright v. U.S. Dep't of Homeland Sec., 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.”). The terms of the statute preclude Petitioner from compelling initiation of removal proceedings by any means, including a writ of mandamus. Amuah v. Napolitano, No. 5:10-HC-2107-FL, 2011 WL 3664711, at *1 (E.D. N.C. Aug. 18, 2011). The relief Petitioner seeks is not available.
RECOMMENDATION
It is recommended that the District Court deny the Petition for Writ of Mandamus without issuance and service of process.
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 Post Office Box 2317 Florence, South Carolina 29503
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).