Opinion
CIVIL NO. 3:19-CV-01719
11-13-2019
KRISHNA MOTE, Plaintiff, v. FRANCIS P. SEMPA, Defendant.
(Judge Caputo) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff in this case, Krishna Mote ("Mote"), is a prisoner currently incarcerated in the Schuylkill Federal Correctional Institution ("FCI Schuylkill") in Minersville, Pennsylvania. In his complaint, Mote seeks a writ of mandamus compelling United States Attorney Francis P. Sempa ("Sempa") to correct allegedly perjured testimony that was admitted in Mote's criminal trial. In this report and recommendation, we review Mote's complaint under the screening provision of 28 U.S.C. § 1915A and conclude that it fails to state a claim upon which relief can be granted. We further conclude that granting Mote leave to amend his complaint would be futile and accordingly recommend that his complaint be dismissed with prejudice for failure to state a claim upon which relief can be granted.
II. Background and Procedural History.
Mote initiated this case by filing a complaint pro se on October 3, 2019. Doc. 1. Mote's complaint seeks a writ of mandamus under 28 U.S.C. § 1361 compelling Sempa to correct allegedly perjured testimony that was admitted during Mote's criminal trial. Id. at 1. Mote states that he is not challenging the legality of his conviction or sentence, but instead "is challenging the Government for not correcting the perjured testimony by a Government witness." Id.
III. Discussion.
A. Screening of In Forma Pauperis Complaints—Standard of Review.
We have a statutory obligation to review Mote's complaint under 28 U.S.C. § 1915A, which provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Id. "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; orId. § 1915A(b).
(2) seeks monetary relief from a defendant who is immune from such relief.
A federal court is obligated to dismiss a complaint that "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915A(b)(1). This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
To state a claim for relief, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
In deciding whether to dismiss a complaint for failure to state a claim upon which relief can be granted, a federal court "must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party." Krieger v. Bank of America, 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. In practice, this leads to a three-part standard:
To assess the sufficiency of a complaint under Twombly and Iqbal, a court must: 'First, take note of the elements a plaintiff must plead to state a claim. Second, identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017) (internal quotation marks and alterations omitted) (quoting Burtch v. Millberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011)).
Complaints brought pro se are afforded more leeway than those drafted by attorneys. In determining whether to dismiss a complaint brought by a pro se litigant, a federal district court is "required to interpret the pro se complaint liberally." Sause v. Bauer, 138 S. Ct. 2561, 2563 (2018). "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94. Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
B. Mote's Complaint Fails to State a Claim Upon Which Relief Can Be Granted.
Mote's complaint seeks a writ of mandamus under 28 U.S.C. § 1361, which provides that "[t]he 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." A writ of mandamus is a drastic remedy, which should be "invoked only in extraordinary situations." Semper v. Gomez, 747 F.3d 229, 251 (3d Cir. 2014) (quoting Stehney v. Perry, 101 F.3d 925, 934 (3d Cir. 1996)). "Specifically, 'the common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief.'" Id. (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). A plaintiff seeking to obtain a writ of mandamus must show that he has "no other adequate means to attain the relief he desires" and that his right to a writ of mandamus is "clear and indisputable." Stehney, 101 F.3d at 934 n.6 (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980)).
A federal prisoner challenging the legality of his confinement generally must do so via a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) ("Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution." (citing Davis v. United States, 417 U.S. 333, 343 (1974))). A petition for writ of mandamus may not be used to evade the requirements for filing a motion under § 2255. See, e.g., In re McCusker, 697 F. App'x 129, 130 (3d Cir. 2017) (citing Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009)); In re Schmutzler, 688 F. App'x 143, 144 (3d Cir. 2017) (citing Massey, 581 F.3d at 174). The fact that a prisoner is barred from filing a second or successive motion under § 2255 "does not make mandamus an available remedy." In re Spann, 403 F. App'x 741, 744 (3d Cir. 2010). "Mandamus does not become available simply because the sentencing court previously denied relief under section 2255 or because the gatekeeping provisions of section 2255 make it difficult to pursue a successive motion." Id. (citing In re Dorsainvil, 19 F.3d 245, 251 (3d Cir. 1997)); see also, e.g., Garcia v. U.S. Parole Comm'n, No. 12:CV-00356, 2014 WL 1225435, at *4 (D.N.J. Mar. 24, 2014) (finding that mandamus relief was unavailable even if petitioner was barred from filing a second or successive motion under § 2255).
Here, Mote argues that he is not challenging the legality of his conviction or sentence and therefore is not required to pursue relief through a motion under § 2255. See doc. 1 at 1-2. We find this argument unpersuasive. A court order granting mandamus relief and requiring Sempa to correct perjured testimony would necessarily require the court to set aside Mote's prior conviction. Mote's conclusory statement that he is not challenging his conviction or sentence does not remove this case from § 2255's purview when it is clear from Mote's requested relief that he is in fact challenging the legality of his conviction. Indeed, the Third Circuit has held on numerous occasions that post-conviction claims seeking to correct perjured testimony must be brought through motions under § 2255. See, e.g., In re: Reynolds, 706 F. App'x 98, 99-100 (3d Cir. 2017) (per curiam); Hallett v. Schultz, 241 F. App'x 869, 870-71 (3d Cir. 2007) (per curiam); Adams v. Schultz, 237 F. App'x 739, 740-41 (3d Cir. 2007) (per curiam). Accordingly, Mote's claim in the instant case must be brought through a motion under § 2255. The fact that he may be barred from bringing such a motion due to the procedural requirements of § 2255 does not make mandamus relief available. Spann, 403 F. App'x at 744. Mote's petition for a writ of mandamus should therefore be dismissed because mandamus relief is unavailable in this case.
C. Mote Should Not Be Given Leave to Amend.
When dismissing a complaint, "[a] district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). In this case, we find that amendment of Mote's complaint would be futile because mandamus relief is unavailable in this case. We accordingly recommend that Mote not be given leave to amend his complaint.
IV. Recommendation.
For the foregoing reasons, we recommend that the court dismiss Mote's complaint with prejudice and close this case.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before
the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 13th day of November, 2019.
s/Susan E . Schwab
Susan E. Schwab
United States Chief Magistrate Judge