Opinion
C. A. 4:22-cv-3990-MGL-TER
06-26-2023
KEITH LEVAN, Petitioner, v. WARDEN, LEE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, Keith LeVan (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 10, 2022. (ECF No. 1). This matter is currently before the court on the petition for writ of mandamus filed by Petitioner on March 17, 2023. (ECF No. 28).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
Respondent filed a motion for summary judgment along with a return on March 13, 2023. This court has granted two motions filed by Petitioner requesting an extension of time to file a response to the motion for summary judgment. The response was due by June 15, 2023. (ECF No. 38). The court is giving Petitioner an additional fifteen days from the date of this report and recommendation to file a response to Respondent's motion for summary judgment. The motion for summary judgment will be addressed in a separate report and recommendation when ripe for review.
In this petition, Petitioner seeks a “Writ of Mandamus to the Warden of Lee Correctional Institution of case #4:22-cv-03990-MGL-TER to return Keith S. LeVan's siezed(sic) Legal Properties necessary for his lawful exercise of his legal postconviction remedies.” (Id.).
Mandamus relief is a drastic remedy and should be used only in extraordinary circumstances. Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004); In re Murphy-Brown, LLC, 907 F.3d 788, 795 (4th Cir. 2018). Further, mandamus relief is available only when the petitioner has a clear right to the relief sought and has no other adequate means to attain the desired relief. Murphy-Brown, 907 F.3d at 795.
Under 28 U.S.C. § 1361, federal district courts are granted “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.” 28 U.S.C. § 1361 (emphasis added). Thus, a district court has no mandamus jurisdiction over state employees and cannot compel a South Carolina state agency to take a particular action. See, e.g., King v. S.C. Dep't of Corr., No. 0:14-cv-1677-RBH, 2014 WL 11497839, at *1 (D.S.C. Nov. 13, 2014), aff'd, 600 Fed.Appx. 131 (4th Cir. 2015) (explaining that § 1361 extends federal mandamus jurisdiction only to federal officers or employees). Accordingly, this court does not have jurisdiction to grant mandamus relief against state officials. See In re Thomas, 2023 WL 2160060, at *1 (4th Cir. Feb. 22, 2023) (citing Gurley v. Superior Ct. of Mecklenburg Cnty., 411 F.2d 586, 587 (4th Cir. 1969) (per curiam)). Therefore, the relief sought by LeVan in his petition for writ of mandamus is not available.
CONCLUSION
Accordingly, it is recommended that the petition for writ of mandamus (ECF No. 28) be denied.
The parties' attention is directed to the important notice on the next page.