Opinion
C/A 8:23-cv-02083-DCC-JDA
06-13-2023
Darrell Denteze Horry, Petitioner, v. Officer Cardenas, Officer Tew, Respondents.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Darrell Denteze Horry (“Petitioner”) is a prisoner incarcerated in Georgia at the Muscogee County Correctional Institution. Proceeding pro se and in forma pauperis, Petitioner commenced this action by filing a Petition for writ of mandamus under 28 U.S.C. § 1361. [Doc. 1.]
Petitioner also filed a separate action at case number 2:23-cv-2084 in this Court asserting claims under 42 U.S.C. § 1983 in which he makes identical allegations to those in the present case.
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 is subject to summary dismissal.
BACKGROUND
Petitioner makes the following allegations in his Petition. Petitioner contends that the events giving rise to his claims occurred on May 16, 2020, in Mount Pleasant, South Carolina. [Id. at 1, 6.] According to Petitioner, Respondent Tew conducted a traffic stop of a vehicle in which Petitioner was a passenger, claiming the stop was because of a hanging tail light. [Id. at 6.] After approaching the vehicle, Respondent Tew observed that the vehicle's two occupants were black males. [Id.] Respondent Tew asked the driver for his license and insurance information. [Id.] Respondent Tew then claimed he smelled “‘weed,'” although no marijuana or other drugs were found in the vehicle or in the possession of the occupants. [Id.] The driver consented to a search and Petitioner was ordered to step out of the vehicle. [Id.]
After Petitioner exited the vehicle, he agreed to let Respondent Tew check him for weapons but refused to consent to a search of his person. [Id.] Respondent Tew then asked Petitioner if he had ever been in trouble with the law; Petitioner responded “‘no.'” [Id.] Respondent Tew then searched the driver and a K9 unit/narcotics officer searched Petitioner. [Id.] Petitioner contends most of the officers on the scene were narcotics officers. [Id.] Petitioner contends that the traffic stop was “rehearsed” and the vehicle was targeted because it was occupied by two black males leaving a Mexican restaurant, which the police had been staking out. [Id.] Petitioner contends that the stop was illegal and the result of racial profiling. [Id.]
Respondent Cardenas called Petitioner to the front of the police car to conduct a “simple ‘pat down'” for weapons. [Id. at 7.] However, the search resulted in Petitioner being sexually harassed, humiliated, and intimidated by Respondent Cardenas in violation of Petitioner's Fourth Amendment rights. [Id.] While conducting a pat down search, Respondent Cardenas grabbed Petitioner's testicle three times and ignored Petitioner's requests to stop. [Id.] Respondent Cardenas sexually assaulted Petitioner by squeezing his testicles while he was handcuffed, which was recorded on the officer's dash camera and in the view of Respondent's Tew and Stroder. [Id.] Respondent Cardenas refused to stop despite Petitioner's pleas and “continued the assault in amusement.” [Id.] Respondent Cardenas commanded Petitioner to spread his legs, but Petitioner declined. [Id.] Respondent Cardenas then squatted down to see if any drugs fell from Petitioner's crotch area. [Id.] After no drugs were found, the driver was given a written warning for a tail light violation and Petitioner's handcuffs were removed and he was released. [Id.]
Petitioner contends that these actions violated his constitutional rights. [Id.] For his relief, Petitioner seeks $250,000 in actual damages and $500,000 in punitive damages. [Id.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se Petition filed in this case. The review was conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915 and 1915A, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132, 110 Stat. 1214, 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); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).
Petitioner filed this action in forma pauperis under 28 U.S.C. § 1915. This statute authorizes the 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).
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, 93-94 (2007). However, even under this less stringent standard, the Petition 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, 390-91 (4th Cir. 1990).
DISCUSSION
Writs of mandamus are drastic remedies to be used only in extraordinary circumstances. Kerr v. United States 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 only available 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. United States 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) (citing United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502, 511 (4th Cir. 1999)).
Here, Petitioner has not shown that he has a clear and indisputable right to the relief sought or that Respondents have a clear duty to do the specific act requested. While 28 U.S.C. § 1361 provides that federal district courts have original jurisdiction of 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 Respondents of a “ministerial act” for which mandamus relief is proper.
Petitioner has not satisfied the mandamus requirement that he have no other adequate means to obtain the relief he desires. See In re Braxton, 258 F.3d. at 261; In re Blackwater Sec. Consulting, L.L.C., 460 F.3d at 592 (explaining 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); see also Spencer v. Drew, No. 08-cv-3150, 2008 WL 5115029 at *4 (D.S.C. Dec. 2, 2008); Moore v. Rivera, No. 6:07-cv-03498-RBH, 2008 WL 4832991 at *5 (D.S.C. Oct. 30, 2008). Here, in another action pending in this Court based on the same facts, Petitioner seeks money damages against Respondents. That action, filed pursuant to 42 U.S.C. § 1983, provides an adequate means to obtain the relief Petitioner desires. Additionally, Plaintiff has filed a civil action in the state court making nearly identical claims based on the events complained of in the present case. That action also remains pending and provides Plaintiff an adequate means to obtain relief. See Horry v. Town of Mount Pleasant, No. 2021-cp-10-01439, available at Charleston County Public Index, https://publicindex.sccourts.org/ Charleston/PublicIndex/PISearch.aspx (search by case number “2021CP1001439”) (last visited June 12, 2023).
In sum, because Petitioner has failed to allege facts showing that he is clearly and indisputably entitled to the relief sought, that Respondents have a clear and indisputable duty to do the specific acts he requests, or that there are no other adequate means to attain the relief he desires, he 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, his Petition for a writ of mandamus should be dismissed. See Stanley v. South Carolina, No. 1:11-cv-884-JMC-SVH, 2011 WL 4949676, at *2 (D.S.C. Sept. 23, 2011), Report and Recommendation adopted by 2011 WL 4949833 (D.S.C. Oct. 18, 2011); Cunningham v. Kane, No. 9:16-cv-3647-RMG-BM, 2018 WL 1054823, at *5-6 (D.S.C. Jan. 31, 2018), Report and Recommendation adopted by 2018 WL 1069148 (D.S.C. Feb. 23, 2018); Moss v. Pendleton, No: 0:10-cv-00424-HMH-PJG, 2010 WL 1610132, at *2 (D.S.C. Apr. 5, 2010), Report and Recommendation adopted by 2010 WL 1610302 (D.S.C. Apr. 19, 2010).
CONCLUSION AND RECOMMENDATION
Based on the foregoing, it is recommended that the Petition be DISMISSED without prejudice and without requiring the Respondents to file an answer or return.
IT IS SO RECOMMENDED.