Opinion
C. A. 5:23-3561-BHH-KDW
07-31-2023
Bryar Lange, Petitioner, v. United States Attorney General, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Bryar Lange (“Petitioner”), proceeding pro se and in forma pauperis, is an inmate incarcerated at FCI Edgefield. He filed this civil action 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 Civ. Rule 73.02(B)(2)(f) (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 that the district judge dismiss the Complaint in this case without prejudice and without issuance and service of process.
I. Discussion
A. Standard of Review
Plaintiff filed his Complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal 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, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
Petitioner has filed a “Petition for Writ of Mandamus to the United States Attorney General for Expediated Removal Proceedings.” ECF No. 1. Petitioner states he was convicted of conspiracy to distribute five kilograms or more of cocaine aboard a vessel subject to the jurisdiction of the United States and was sentenced on February 28, 2020, to 75-months' imprisonment. ECF No. 1 at 1. Petitioner says he has less than seven-months remaining on his sentence. Id. Petitioner claims he has earned more than 330 days of good time credits under the First Step Act of 2018 incentive program; however, he has not been able to apply these credits because he has been found to be deportable. Id. at 2. Petitioner cites to the First Step Act, 18 U.S.C. § 3582 et seq., and states that pursuant to 18 U.S.C. § 3632(d)(4)(E)(1) deportable prisoners are ineligible to apply time credits. Id. at 4. Petitioner contends Congress created special proceedings for deportable prisoners seeking to earn time credits; however, he argues FCI Edgefield does not have an adequate immigration system or process to ensure that he can benefit from an alternative method of expedited removal proceedings under 18 U.S.C. 3632(d)(4)(E)(ii). Id. at 4-6.
18 U.S.C. 3632 (d)(4)(E)(ii) states:
(E) Deportable prisoners ineligible to apply time credits.--
(ii) Proceedings.--The Attorney General, in consultation with the Secretary of Homeland Security, shall ensure that any alien described in section 212 or 237 of the Immigration and Nationality Act (8 U.S.C. 1182, 1227) who seeks to earn time credits are subject to proceedings described in section 238(a) of that Act (8 U.S.C. 1228(a)) at a date as early as practicable during the prisoner's incarceration.8 U.S.C. § 1228(a) provides the Attorney General with discretion to place some aggravated felons in expedited removal proceedings.
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. Mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988). A party seeking a writ of mandamus must demonstrate each 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). The failure to show any of these prerequisites defeats a district court's jurisdiction under 28 U.S.C. § 1361. See National Association of Government Employees v. Federal Labor Relations Authority, 830 F.Supp. 889, 898 (E.D. Va. 1993). A writ of mandamus is a drastic remedy and should be used only in extraordinary circumstances. Kerr v. U.S. District Court, 426 U.S. 394, 402 (1976).
Applying these principles, Petitioner has failed to demonstrate that he meets all the conditions required to warrant mandamus relief. Petitioner fails to establish he has a clear right to the relief he is seeking as he is not entitled to an immediate determination of his removal status by immigration officials. See Wright v. U.S. Dep't of Homeland Sec., 2009 WL 3711366, at *2 (D. Md. Nov. 2, 2009) (finding a petitioner does not have a private right of action to compel immediate consideration for removal prior to the completion of his term of incarceration). Petitioner has also failed to establish that the United States Attorney General has a clear duty to act under §§ 3632(d)(4)(E)(ii) and 1228(a). In fact, § 1228(a) specifically provides that “[n]othing in this section shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.” See 8 U.S.C. § 1228(a)(3)(B); see also, Amuah v. Napolitano, No. 5:10-HC-2107-FL, 2011 WL 3664711, at *1 (E.D. N.C. Aug. 18, 2011). Because § 1228 prohibits Petitioner from compelling the Attorney General to initiate removal proceedings, the court lacks subject matter jurisdiction over Petitioner's request for mandamus relief.
II. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends that the court dismiss the Petition for Writ of Mandamus without prejudice and without issuance and service of process.
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 Post Office Box 2317 Florence, South Carolina 29503
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).