Davenport v. Reinhardt

Full title: TERRANCE DAVENPORT, Petitioner v. Judge BILL REINHARDT, Respondent

Court: United States District Court, M.D. Georgia, Valdosta Division

Date published: Feb 23, 2011

NO. 7:11-CV-24 (HL) (M.D. Ga. Feb. 23, 2011)

Opinion

NO. 7:11-CV-24 (HL).

February 23, 2011

ORDER

HUGH LAWSON, District Judge

Petitioner TERRANCE DAVENPORT has submitted a "Petition for a Writ of Mandamus." Solely for purposes of this Court's dismissing petitioner's complaint, leave to proceed in forma pauperis is hereby granted.

I. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint "which seeks redress from a governmental entity or officer or employee of a governmental entity." Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is: (1) "frivolous, malicious, or fails to state a claim upon which relief may be granted"; or (2) "seeks monetary relief from a defendant who is immune from such relief."

A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless." Carroll v. Gross , 984 F.2d 392, 393 (11^th Cir. 1993). A complaint fails to state a claim when it does not include "enough factual matter (taken as true)" to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007) (noting that "[f]actual allegations must be enough to raise a right to relief above the speculative level," and that the complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action") (internal quotations and citations omitted); see also Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) (explaining that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice").

II. DISCUSSION

Petitioner asks this Court for a writ of mandamus directing Judge Bill Reinhardt to award petitioner "the 66 days he spent in confinement awaiting a revocation hearing." Petitioner states that O.C.G.A. § 17-10-11 commands that he be given credit for the time he served in county jail.

Under 28 U.S.C. § 1361, this Court may issue a writ of mandamus only to "compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Brown v. Lewis , 361 Fed. Appx. 51 (11^th Cir. 2010). This Court has no power to issue a writ of mandamus to "direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought." Moye v. Clerk, DeKalb County Superior Court , 474 F.2d 1275, 1275-76 (5th Cir. 1973).

Petitioner's remedy is to seek relief directly from the Georgia Department of Corrections ("GDOC"). If necessary thereafter, he may file a mandamus or injunction action against the Commissioner of the GDOC in the applicable Georgia superior court. See Edwards v. State , 383 Ga. App. 305, 306, 641 S.E.2d 193 (2007). The final decision may then be appealed to the Georgia Supreme Court. After completing these steps, petitioner may then file a petition for writ of habeas corpus under 28 U.S.C. § 2241 in this Court.

III. CONCLUSION

Based on the foregoing, petitioner's mandamus petition should be DISMISSED pursuant to 28 U.S.C. § 1915A.

SO ORDERED, this 23^rd day of February, 2011.