Opinion
C/A No. 8:20-cv-01352-JFA-JDA
04-15-2020
G. Steven Pinion, A. Las Dulce, Charon Turner, Jessie Ervin, Jonathan Avina, Carlos Dorado, Hector Ramos, Herbert Burroughs, Jr., Travis Key, Keith Allen Deas, Jeremiah Johnson, Anthony Vita, Jack Rogers, Jerry Lowe, Bruce Willis, Joseph Wood, Isreael Reco, Petitioners, v. FCI Edgefield, Respondent.
REPORT AND RECOMMENDATION
Petitioners are prisoners in the custody of the Federal Bureau of Prisons and are currently incarcerated in South Carolina at the Edgefield Federal Correctional Institution ("FCI Edgefield"). Proceeding pro se, Petitioners commenced this action by filing a hand-written, two-page document, captioned as a "Request For Emergency Injunction" [Doc. 1], which the Court construes as a Petition for writ of mandamus under 28 U.S.C. § 1361. 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.
The undersigned further notes that a filing fee has not been paid in this case. "Similar to civil rights complaints, mandamus petitions are subject to the filing fee provisions of the Prison Litigation Reform Act ('PLRA'), 28 U.S.C. §§ 1915(b) and (g)." Johnson v. U.S. Postal Serv., No. 2:17-cv-00022, 2017 WL 3425786, at *1 (S.D.W. Va. July 5, 2017), Report and Recommendation adopted by 2017 WL 3392750 (S.D.W. Va. Aug. 7, 2017). Further, inmates generally are not permitted to join together in an action such as this one. See Lilly v. Ozmint, No. 2:07-cv-01932-JFA, 2007 WL 2022190, at *1 (D.S.C. July 11, 2007) ("[M]ultiple prisoners are not allowed to join together in a single lawsuit. Multiple filing fees cannot be collected for one case filed by multiple plaintiffs, thus the PLRA's requirement that a prisoner pay the full fee for filing a lawsuit would be circumvented in a multiple plaintiff case subject to the PLRA."). Here, because this action is subject to summary dismissal as Petitioners are not entitled to the relief they seek, the undersigned recommends that the filing fee in this matter be suspended. See Class Action ex rel. All Prisoners at T.R.C.I. v. Ozmint, No. 9:10-cv-1934-TLW-BM, 2010 WL 3812531, at *3 (D.S.C. Aug. 16, 2010), Report and Recommendation adopted by 2010 WL 3766873 (D.S.C. Sept. 22, 2010). Any prisoner who chooses to file a lawsuit will be required to pay the full filing fee or file the appropriate paperwork to proceed in forma pauperis. See In Re: Procedures in Civil Actions Filed by Prisoner Pro Se Litigants, No. 3:07-mc-5014-JFA (D.S.C. Sept. 18, 2007) (explaining that, pursuant to local procedures in this judicial district, an inmate must pay the applicable filing fee when he commences a civil action).
BACKGROUND
Petitioners are 17 inmates, all currently confined in the Special Housing Unit ("SHU") at FCI Edgefield. [Doc. 1 at 1-2.] Petitioners allege that they are concerned about themselves and their loved ones due to the coronavirus outbreak. [Id.] Petitioners allege that, at this time, the inmates in the SHU are being denied access to news coverage. [Id.] Petitioners allege that the prison staff will not allow inmates in the SHU to use radios. [Id.] Petitioners allege that they do not have access to any media coverage of the coronavirus outbreak. [Id.] Petitioners allege that they are allowed one phone call every thirty days. [Id.] Petitioners allege that the coronavirus is deadly and swift. [Id.] Petitioners allege that, with no way to hear the news or call their loved ones regularly, they are in a very stressful situation. [Id.] Petitioners allege they are concerned that they may call home in thirty days only to find that their loved ones have passed away. [Id.] Petitioners therefore ask that the Court Order FCI Edgefield to give Petitioners in the SHU (1) access to daily news coverage and (2) one phone call a week to call their loved ones. [Id.]
APPLICABLE LAW
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. § 1915A.
Pro se pleadings 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 complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89 (2007). When a federal court is evaluating a pro se pleading, the allegations are assumed to be true. De'Lonta v. Angelone, 330 F. 3d 630, 631 n.1 (4th Cir. 2003). Nevertheless, the requirement of liberal construction does not mean that a 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 (4th Cir. 1990).
Here, even under this less stringent standard, the Petition filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915A(b). Thus, following the required initial review, it is recommended that the Petition submitted in this case be dismissed without requiring the Respondent to file a response.
DISCUSSION
As noted, Petitioners seek an order of this Court requiring prison officials to provide them with additional phone calls and access to news coverage. Petitioners style their action as one for an emergency injunction. However, based on the allegations in the Petition and the requested relief, the undersigned concludes that the Petition is properly construed as one seeking a writ of mandamus under 28 U.S.C. § 1361 because Petitioners seek an order from this Court compelling prison officials at FCI Edgefield to act. See In re Goodnow, 22 F. App'x 89, 91 (4th Cir. 2001) (construing a motion for a preliminary injunction as a petition for writ of mandamus "because [petitioner] seeks an order from this court directing the district court to not dismiss his petitions"). "The mandatory injunction is in effect equivalent to a writ of mandamus and should be governed by like considerations." New York Tech. Inst. of Md. v. Limburg, 87 F. Supp. 308, 313 (D. Md. 1949).
The undersigned concludes that, even if the Court were to construe this action as one seeking an injunction, Petitioners' motion for injunctive relief should be denied under the legal standard adopted by the Fourth Circuit Court of Appeals and the standard articulated in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 607 F.3d 355 (4th Cir. 2010) (per curiam) ("On further consideration, we now reissue Parts I and II of our earlier opinion in this case, 575 F.3d at 345-347, stating the facts and articulating the standard for the issuance of preliminary injunctions."). Under this standard, a petitioner must demonstrate "'[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.'" See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009) (quoting Winter, 555 U.S. at 20). All four requirements must be satisfied. Id. Furthermore, to obtain injunctive relief, a petitioner must demonstrate more than the "possibility" of irreparable harm because the "possibility of irreparable harm" standard is inconsistent with the Supreme Court's characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that a plaintiff is entitled to such relief. Id. Here, Petitioners have not made a showing to demonstrate that any of the four factors weigh in their favor.
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 F. App'x 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, Petitioners have not shown that they have 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 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).
Petitioners' pleadings fail to show a violation by Respondents of a "ministerial act." Specifically, Petitioners seek a court order requiring FCI Edgefield to provide inmates in the SHU additional phone calls and access to news coverage. [Doc. 1 at 1.] However, federal inmates have no right to phone calls or access to news coverage. "[T]here is no constitutional or federal statutory right to use of a telephone while in prison." United States v. Alkire, 82 F.3d 411 (4th Cir. 1996). "Furthermore, prison officials may properly restrict an inmate's telephone privileges if doing so is reasonably related to a legitimate prison security or administrative interest." Hunt v. Carver, No. 1:19-cv-00356, 2019 WL 7486810, at *5 (S.D.W. Va. Nov. 7, 2019), Report and Recommendation adopted by 2020 WL 61175 (S.D.W. Va. Jan. 6, 2020) and 2020 WL 1465905 (S.D.W. Va. Mar. 20, 2020). Courts have consistently concluded that the loss of telephone privileges for a period of time does not rise to the level of a constitutional violation. See Perry v. Lewis, No. 1:19-cv-3364-BHH-SVH, 2019 WL 6828305, at *2 (D.S.C. Dec. 13, 2019) (collecting cases). Likewise, "a prisoner who has been denied a radio has not set out a deprivation of his constitutional rights." Becon v. McKie, No. 3:00-cv-2911-08BC, 2001 WL 34681740, at *3 (D.S.C. Aug. 13, 2001) (collecting cases), aff'd, 31 F. App'x 281 (4th Cir. 2002). "Courts have routinely upheld restrictions similar to the ones about which [Petitioners] now complain[ ]." Collins v. Padula, No. 2:12-cv-03112-DCN, 2014 WL 1318978, at *4 (D.S.C. Mar. 31, 2014) (noting prison's policy banning radios, newspapers, and magazines did not violate Constitution) (collecting cases), aff'd, 582 F. App'x 258 (4th Cir. 2014). Thus, Petitioners are not entitled to order of this Court requiring the same.
In sum, because Petitioners have failed to allege facts showing that they are clearly and indisputably entitled to the relief sought or that Respondent has a clear and indisputable duty to do the specific acts requested, Petitioners have failed to demonstrate the necessary conditions for the issuance of a writ of mandamus, and the Court need not look any further. Therefore, as Petitioners present no extraordinary circumstances to warrant the drastic remedies of mandamus, the 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 requiring the Respondent to file an answer or return. It is further recommended that the filing fee in this matter be suspended in the interests of justice and judicial economy.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge April 15, 2020
Greenville, South Carolina
Petitioners' 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
300 East Washington Street
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).