Opinion
C. A. 1:24-1165-DCC-SVH
03-12-2024
Russell Gordon Vickery, Petitioner, v. Timothy M. Cain, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Russell Gordon Vickery (“Petitioner”), proceeding pro se and in forma pauperis, is a pretrial detainee incarcerated at Anderson County Detention Center (“ACDC”). He filed this petition for writ of mandamus against the Honorable Timothy M. Cain, United States District Judge (“Judge Cain”), the judge presiding over his federal criminal charges. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaint for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends this matter be summarily dismissed.
I. Factual and Procedural Background
Petitioner alleges he filed a motion to dismiss for lack of subject matter jurisdiction in his criminal case USA v. Vickery, Cr. No. 8:23-561-TMC. Petitioner argues his filing created a contract in which Judge Cain was required to write his own affidavit and rebut everything in Petitioner's motion point-by-point within 30 days. [ECF No. 1 at 3]. Petitioner subsequently filed a motion for a default judgment in his criminal case, and makes similar arguments related to this motion. Id. at 4-6.
This court may take judicial notice of Petitioner's criminal case. Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (district court may take judicial notice of its own files and records); see also 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.'”).
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the pro se petition. Pro se actions are held to a less stringent standard than those drafted by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007), 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, Hughes v. Rowe, 449 U.S. 5, 9 (1980). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Erickson, 551 U.S. at 94 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
Nonetheless, 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Fed.R.Civ.P. 8 for “all civil actions”). 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 the plaintiff could prevail, it should do so; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. Analysis
Petitioner is a prisoner,but has paid the full filing fee. The court reviews this case pursuant to the Prisoner Litigation Reform Act, which states in relevant part:
The Prisoner Litigation Reform Act defines prisoner as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2) (emphasis added). Therefore, the court has jurisdiction to dismiss this matter if it is determined to be frivolous. A complaint is deemed frivolous when it is “clearly baseless” and includes allegations that are “fanciful,” “fantastic,” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
The petition contains fanciful and delusional allegations, such as his claim that his motion in his criminal case created a contract with Judge Cain.
The petition is frivolous, as Petitioner has provided no authority for mandamus relief and it is clearly baseless. 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 relief [he] desires.” Murphy-Brown, 907 F.3d at 795 (alteration and internal quotation marks omitted). Here, Petitioner simply seeks to appeal the decision of Judge Cain denying his motion to dismiss the indictment, an appeal which is not available by way of mandamus. See In Re: Jones, No. 22-2081, 2023 WL 8183313 *1 (4th Cir. November 27, 2023) (denying petition directing the district judge to vacate criminal conviction); In re Jennings, No. 21-2012, 2021 WL 5985544, at *1 (4th Cir. Dec. 17, 2021) (denying petition for writ of mandamus to direct recusal of district judge presiding over criminal proceedings or challenging his criminal conviction); In re Davis, 829 Fed.Appx. 597 (4th Cir. 2020) (same).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends this matter be summarily dismissed as frivolous.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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 901 Richland Street Columbia, South Carolina 29201
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).