Opinion
Case No. CIV-21-032-HE
03-18-2021
WILLIAM L. HARDING, Petitioner, v. OKLAHOMA DEPARTMENT OF CORRECTIONS, et al., Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed a "Motion for Alternative Writ of Mandamus: 28 U.S.C. § 1361." (Doc. 1, "Motion"). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). (Doc. 4). For the following reasons, the undersigned recommends that the writ of mandamus be dismissed upon filing, and Petitioner's Application for Leave to Proceed In Forma Pauperis (Doc. 2) be denied as moot.
I. Background.
Petitioner is currently incarcerated at the Joseph Harp Correctional Center in Lexington, Oklahoma. (Doc. 1, at 1). In his Motion, he requests that the court grant a writ of mandamus requiring the United States Equal Employment Opportunity Commission (EEOC) to update him on its investigation or issue a right-to-sue letter in the matter of William L. Harding v. Oklahoma Department of Corrections, EEOC Charge No. 564-2020-01526. (Id.) Petitioner argues that Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires the EEOC to issue a notice of right-to-sue letter within 180 days of the filing of a complaint. (Id. at 2). Although he "realizes the effect of the pandemic," Petitioner complains that he has received no communication from the EEOC since filing his complaint "prior to July 2020." (Id.) He calculates that the 180-day timeframe since filing his complaint "expired in December 2020." (Id.) He alleges that he has written the Office of the EEOC without response, leaving only the option of seeking a writ of mandamus from this court. (Id.) He is further unable to call the EEOC "because of the 45 minute wait time to speak with someone." (Id.) He thus filed his Motion on January 14, 2014, seeking a writ of mandamus. (Id. at 1).
II. Screening Requirement.
Federal law requires the court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss any frivolous or malicious claim, any claim asking for monetary relief from a defendant who is immune from such relief, or any claim on which the court cannot grant relief. Id. at §§ 1915A(b), 1915(e)(2)(B).
III. Petitioner Has Not Established Entitlement to a Writ of Mandamus.
"The district courts shall have 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. "A district court's decision not to exercise jurisdiction under the mandamus statute for federal officers, 28 U.S.C. § 1361, is a discretionary one, which is reviewed for abuse of discretion." Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (internal quotation marks omitted) (upholding district court's order declining to issue writ reopening EEOC investigation). A writ of mandamus is a "drastic remedy, and is to be invoked only in extraordinary circumstances." In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 (10th Cir. 2009) (internal quotation marks omitted). Petitioner must establish three elements before the court may grant a writ of mandamus: (1) there are no other adequate means to attain relief, (2) the right to the writ is "clear and indisputable" and (3) "the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Id. at 1187 (internal quotation marks omitted).
Although he claims otherwise, Petitioner has other adequate means to attain relief - namely, by requesting the notice of right to sue, in writing, from the EEOC. See 29 C.F.R. § 1601.28(a)(1), (d)(1) (establishing procedures for requesting a notice of right to sue when 180 days have expired). It appears that he has, in fact, taken this step. (Doc. 1, at 2). That he has encountered difficulties and delay in this process is not an "extraordinary circumstance" and does not warrant issuance of a writ by this court.
Nor is his right to the writ "clear and indisputable." In re Cooper Tire & Rubber Co., 568 F.3d at 1186. Petitioner seeks a writ to compel the EEOC to issue his notice; however, the Attorney General must issue the notice of right to sue where the employer at issue is a government, governmental agency, or political subdivision. 29 C.F.R. § 1601.28(d)(2). And, in general, "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency." Newsome, 301 F.3d at 231; see also E.E.O.C. v. Bank of Oklahoma, 2004 WL 7089338, at *2 (N.D. Okla. Aug. 11, 2004).
For the foregoing reasons, the undersigned believes the writ would not be "appropriate under the circumstances," In re Cooper Tire & Rubber Co., 568 F.3d at 1186, and thus recommends the court dismiss Petitioner's action.
IV. Recommendation and Notice of Right to Object.
Based on the foregoing, the undersigned recommends the court dismiss Petitioner's "Motion for Alternative Writ of Mandamus: 28 U.S.C. § 1361" (Doc. 1) and deny Petitioner's Application for Leave to Proceed In Forma Pauperis (Doc. 2) as moot. The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 11, 2021, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.
ENTERED this 18th day of February, 2021.
/s/_________
AMANDA MAXFIELD GREEN
UNITED STATES MAGISTRATE JUDGE