Thomas v. Contaminated H20

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Petitioner Desean Lamont Thomas's objections (Doc. No. 7 ) to Magistrate Judge Becky R. Thorson's September 20, 2017 Report and Recommendation are OVERRULED. 2. Magistrate Judge Becky R. Thorso n's September 20, 2017 Report and Recommendation (Doc. No. 5 ) is ADOPTED. 3. This matter is DISMISSED WITHOUT PREJUDICE. 4. The application to proceed in forma pauperis of Petitioner DeSean Lamont Thomas (Doc. No. 2 ) is DENIED. 5. Thomas's motion for a writ of mandamus (Doc. No. 3 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 10/16/2017. (BJS) Modified text on 10/16/2017 (ACH). cc: Thomas

UNITED STATES OF AMERICA
DISTRICT OF MINNESOTA

Desean Lamont Thomas,

Civil No. 17-4017 (DWF/BRT)

Petitioner,
v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Contaminated H20, et al.,
Respondent.

This matter is before the Court upon Petitioner Desean Lamont Thomas’s
(“Petitioner”) objections (Doc. No. 7) to Magistrate Judge Becky R. Thorson’s
September 20, 2017 Report and Recommendation (Doc. No. 5) insofar as it recommends
that: (1) this matter be summarily dismissed without prejudice; (2) Petitioner’s
application to proceed in forma pauperis be denied; and (3) Petitioner’s motion for a writ
of mandamus be denied.
The factual background for the above-entitled matter is clearly and precisely set
forth in the Report and Recommendation and is incorporated by reference for purposes of
Petitioner’s objections. In this case, Thomas alleged that contaminated water at the
prison where he is confined has made him and other inmates ill. In the Report and
Recommendation, Magistrate Judge Thorson explained that through this “Writ of
Mandamus” action, Thomas asks the Court to direct the state courts to take action in a
pending habeas corpus proceeding. Further the Magistrate Judge correctly noted that a
federal district court does not have legal authority to enter a writ of mandamus directed at

a state court. (Doc. No. 5 at 1.) The Magistrate Judge also noted that despite the caption,
Thomas actually seeks habeas relief and explained that this would be an improper vehicle
for Thomas’s challenge because he is challenging the conditions of his confinement. The
Magistrate Judge further explained that characterizing Thomas’s pleading as a § 1983
claim would be inappropriate because his pleading remains fatally flawed as the lone
defendant–“Contaminated H20”–is not a “person,” and Thomas has parallel claims
regarding prison water quality pending in a separate federal case. See Kludt v. MCF, Civ.
No. 17-3842 (D. Minn. amended Complaint filed Sept. 1, 2017).
The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). Having reviewed the record de novo, the Court concludes that Thomas’s
objections do not warrant departure from the Magistrate Judge’s Report and
Recommendation, and the Court agrees with the findings and conclusions reached
therein. Based upon the de novo review of the record and all of the arguments and
submissions of the parties and the Court being otherwise duly advised in the premises, the
Court hereby enters the following:
ORDER
1.

Petitioner Desean Lamont Thomas’s objections (Doc. No. [7]) to Magistrate

Judge Becky R. Thorson’s September 20, 2017 Report and Recommendation are
OVERRULED.

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2.

Magistrate Judge Becky R. Thorson’s September 20, 2017 Report and

Recommendation (Doc. No. [5]) is ADOPTED.
3.

This matter is DISMISSED WITHOUT PREJUDICE.

4.

The application to proceed in forma pauperis of Petitioner DeSean Lamont

Thomas (Doc. No. [2]) is DENIED.
5.

Thomas’s motion for a writ of mandamus (Doc. No. [3]) is DENIED.

LET JUDGMENT BE ISSUED ACCORDINGLY.
Dated: October 16, 2017

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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