Wyatt v. Moncrief et al (INMATE 2)

Filing 3

REPORT AND RECOMMENDATIONS that plaintiff's complaint be dismissed for lack of jurisdiction and that this action be dismissed with prejudice prior to service of process under the provisions of 28 USC 1915(e)(2)(B). The parties are directed to file any objections to the said Recommendation on or before 10/23/2006. Objections to R&R due by 10/23/2006. Signed by Judge Delores R. Boyd on 10/11/2006. (cb, )

Wyatt v. Moncrief et al (INMATE 2)

Doc. 3

Case 2:06-cv-00897-MHT-TFM

Document 3

Filed 10/11/2006

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ C A R L EMMETT WYATT, #211 315 P l a i n t if f , v. H O N . WHIT MONCRIEF, et al., D e f e n d a n ts . _______________________________ * * * * * 2:06-CV-897-MHT (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tiff, an inmate in the custody of the Alabama Department of Corrections, filed th is action on October 5, 2006, against the Honorable Whit Moncrief and the Honorable John B u s h . Plaintiff requests that this court issue an order directing Defendants to enter rulings o n and/or enforce the provisions of Rule 32, Ala.R.Crim.P., with regard to his postco n viction petition now pending before Defendants in state court. (Doc. No. 1.) Considered review compels the court to conclude that the complaint should be d ismissed prior to service of process in accordance with the directives of 28 U.S.C. § 1 9 1 5 (e)(2)(B ).1

A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process, regardless of the payment of a filing fee, if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)(iii).

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Case 2:06-cv-00897-MHT-TFM

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Filed 10/11/2006

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I. DISCUSSION A . Request for Mandamus Relief T o the extent Plaintiff seeks mandamus relief through an order compelling Defendants to take a particular action in his pending state post-conviction petition, this court cannot grant th e requested relief. The All Writs Act provides that "[t]he Supreme Court and all courts e sta b lish e d by Act of Congress may issue all writs necessary or appropriate in aid of their res p e c tive jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1 6 5 1 (a ) . The phrase "in aid of their respective jurisdictions" does not empower a district co u rt to create jurisdiction where none exists."To the contrary, a court may issue orders u n d e r the Act only to protect a previously and properly acquired jurisdiction." Gehm v. New York Life Ins. Co., 992 F. Supp. 209, 211 (E.D.N.Y. 1998). Federal district courts do have original jurisdiction of any action in the nature of m a n d a m u s to compel an officer or employee of the United States to perform a specific duty, 2 8 U.S.C. § 1361, but they lack jurisdiction to compel action by state courts and officials in the performance of their duties where mandamus is the only relief sought. Moye v. Clerk, D e K a l b County Superior Court, 474 F.2d 1275, 1276 (5 th Cir. 1973); Russell v. Knight, 488 F .2 d 96, 97 (5 th Cir. 1973); Davis v. Lansing, 851 F.2d 72, 74 (2 nd Cir. 1988); Gurley v. S u p e rio r Court of Mecklenburg County, 411 F.2d 586, 587 (4 th Cir. 1969). Accordingly, this fe d e ra l district court has no mandamus jurisdiction over the Defendant state employees and, th e r e fo r e , lacks authority to compel them to perform the action Plaintiff requests.

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Case 2:06-cv-00897-MHT-TFM

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Filed 10/11/2006

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B . The § 1983 Claims T o the extent Plaintiff seeks injunctive relief under 42 U.S.C. § 1983 for the conduct an d /or actions of Judges Moncrief and Bush, this court lacks jurisdiction. A federal court la c ks jurisdiction to grant relief under 42 U.S.C. § 1983 on challenges to state court decisions c a se s arising out of state court proceedings even if the allegation is unconstitutionality of th e state action. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486

(1 9 8 3 ); Datz v. Kilgore, 51 F.3d 252 (11 th Cir. 1995); cf. Berman v. Florida Board of Bar E x a m in e r s , 794 F.2d 1529 (11 th Cir. 1986). An action filed pursuant to 42 U.S.C. § 1983 m a y not be used as a substitute to appeal a decision of a state circuit court. Datz, 51 F.3d a t 254; Rolleston v. Eldridge, 848 F.2d 163 (11 th Cir. 1988). Nor can such an action be used to compel a particular action by the state court. Lamar v. 118 Judicial Dist. Court of Texas, 4 4 0 F.2d 383, 384 (5 th Cir. 1971); Haggard v. State of Tennessee, 421 F.2d 1384, 1386 (6 th C ir.1 9 7 0 ); Gurley, 411 F.2d at 587.

II. CONCLUSION Ac co rd in gly , it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's c o m p lain t be DISMISSED for lack of jurisdiction and that this action be DISMISSED with p rejud ice prior to service of process under the provisions of 28 U.S.C. § 1915(e)(2)(B). It is further

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Case 2:06-cv-00897-MHT-TFM

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Filed 10/11/2006

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O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d atio n on or before October 23, 2006. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party is objecting. F r ivo lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a gis tr a t e Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in gs in the report accepted or adopted by the District Court except upon grounds of plain erro r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 t h Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on Se p te m b e r 30, 1981. D o n e, this 11 th day of October 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE

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