Bristow v. Director, Designation and Sentence Computation Center et al
Filing
7
OPINION AND ORDER This case is dismissed. The dismissal is without prejudice to relators pursuit of other avenues of relief through the Bureau of Prisons administrative remedies and 28 U.S.C. §2241(a). Signed by Judge James L Graham on 9/25/13. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
State of Ohio, ex rel.
Lonny Bristow,
Relator,
v.
Case No. 2:13-cv-614
Director and Assistant
Director, Designation and
Sentence Computation Center,
Federal Bureau of Prisons,
Respondents.
OPINION AND ORDER
This action in mandamus was filed on June 6, 2013, in the
Fifth District Court of Appeals, Knox County, Ohio, by relator
Lonny Bristow, a federal prison inmate, against respondents, the
Director and Assistant Director of the Designation and Sentence
Computation Center, Federal Bureau of Prisons.
When the petition
was filed in state court, relator was confined at the Northeast
Ohio Correctional Center in Youngstown, Ohio.
Relator alleged in
his petition that he had previously testified in a state court
criminal proceeding against Steve Hamilton, a member of the Aryan
Brotherhood. Relator stated that Hamilton had threatened his life,
and that relator had previously been placed in protective custody.
Relator further stated that he had been assigned by respondents to
the federal correctional facility located in Terre Haute, Indiana.
Relator maintained that numerous personal friends of Steve Hamilton
were also incarcerated at the Terre Haute institution, and that
relator’s placement there would put his life at risk. Relator also
contended that respondents used “misinformation” which resulted in
his improper classification and assignment to the Terre Haute
facility.
Relator sought a writ of mandamus requiring respondents
to designate him to another facility.
Relator has since been
transferred to the Terre Haute institution.
On June 26, 2013, respondents filed a notice of removal of the
mandamus petition to this court pursuant to 28 U.S.C. §1442(a).
Section 1442(a) permits the removal of a civil action filed in
state court against any officer or agency of the United States to
a United States district court.
On June 27, 2013, respondents
filed a motion to dismiss relator’s petition for writ of mandamus
pursuant to Fed. R. Civ. P. 12(b)(1) due to lack of subject matter
jurisdiction, and pursuant to Fed. R. Civ. P. 12(b)(6) for failure
to state a claim upon which relief can be granted.
On August 19,
2013, the magistrate judge issued an order directing relator to
respond to the motion within fourteen days.
That time period has
elapsed, and relator has failed to respond to the motion to
dismiss.
I. Lack of Subject-Matter Jurisdiction
Respondents have filed a motion to dismiss for lack of
subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
Respondents rely on the doctrine of derivative jurisdiction, which
holds that a federal district court is without proper removal
jurisdiction if the state court from which the case was removed
lacked subject-matter jurisdiction, even if the case could have
originally been filed in federal court.
Calhoun v. Murray, 507
Fed.Appx. 251, 256 (3d Cir. 2012)(citing Minnesota v. United
States, 305 U.S. 382, 389 (1939)); Federal National Mortgage
Association v. LeCrone, 868 F.2d 190, 192 (6th Cir. 1989)(“if the
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state court from whence the action is removed had no jurisdiction
then
the
federal
court
‘receives’
none
even
if
original
jurisdiction in the federal court would have been proper”).
In 1985, Congress amended 28 U.S.C. §1441, the general removal
statute, by adding former 28 U.S.C. §1441(e), which abolished the
doctrine of derivative jurisdiction in “civil actions” commenced in
state court after June 19, 1986.
The Sixth Circuit construed
§1441(e) as also abolishing the derivative jurisdiction doctrine in
cases removed pursuant to §1442(a).
See Carpenter v. Dalrymple,
894 F.2d 407 (table), 1990 WL 5311 at *1 (6th Cir. Jan. 26, 1990).
However, in 2002, Congress redesignated the former §1441(e) as 28
U.S.C. §1441(f), and amended that provision to read: “The court to
which a civil action is removed under this section is not precluded
from hearing and determining any claim in such civil action because
the State court from which such civil action is removed did not
have jurisdiction over that claim.”
supplied).
28 U.S.C. §1441(f) (emphasis
Since the enactment of §1441(f), courts have held that
the derivative jurisdiction doctrine still applies to cases removed
by the federal government or federal officers pursuant to §1442(a).
See Rodas v. Seidlin, 656 F.3d 610, 618 (7th Cir. 2011); Palmer v.
City National Bank of West Virginia, 498 F.3d 236, 245-46 (4th Cir.
2007).
In Bullock v. Napolitano, 666 F.3d 281 (4th Cir. 2012), the
Secretary of the Department of Homeland Security removed an action
from state court pursuant to §1442(a), then moved to dismiss under
the derivative jurisdiction doctrine on the ground that the state
court lacked subject-matter jurisdiction over the Title VII claims
of a federal employee.
The Fourth Circuit affirmed the dismissal,
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noting that Congress had not abrogated the derivative jurisdiction
doctrine with respect to actions removed under §1442(a), and that
because the state court had no subject-matter jurisdiction over the
plaintiff’s claims, neither did the district court after the
Secretary removed the action.
Id. at 286 and n. 2.1
In the instant case, respondents correctly note that a state
court has no authority to issue a writ of mandamus against a
federal officer. See McClung v. Silliman, 19 U.S. 598 (1821)(cited
in Garland v. Sullivan, 737 F.2d 1283, 1286 (3d Cir. 1984)).
Because the Ohio Fifth District Court of Appeals lacked the
authority to entertain relator’s petition for a writ of mandamus
against the respondent federal officials, this court likewise lacks
authority to entertain relator’s petition due to the operation of
the derivative jurisdiction doctrine, and this action must be
dismissed.
II. Failure to State a Claim
Respondents argue that dismissal of the petition is also
warranted because relator has failed to plead facts sufficient to
indicate that he is entitled to relief in mandamus.
In ruling on
a motion to dismiss under Rule 12(b)(6), the court must construe
the complaint in a light most favorable to the plaintiff, accept
1
Other courts have held that the derivative jurisdiction
doctrine creates a defect in removal which constitutes a procedural
bar to the exercise of federal judicial power, rather than
defeating federal subject-matter jurisdiction. See Calhoun, 507
Fed.Appx. at 256; Rodas, 656 F.3d at 619-25. However, even if
dismissal for lack of subject-matter jurisdiction pursuant to Rule
12(b)(1) is not appropriate, the derivative jurisdiction doctrine
would still procedurally bar this court from considering the merits
of relator’s petition, thus providing grounds for dismissal under
Rule 12(b)(6) for failure to state a claim for mandamus relief.
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all
well-pleaded
allegations
in
the
complaint
as
true,
and
determine whether plaintiff undoubtedly can prove no set of facts
in support of those allegations that would entitle him to relief.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v. Lucent
Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008); Harbin-Bey
v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005).
to
dismiss,
the
“complaint
must
contain
To survive a motion
either
direct
or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
allegations
or
legal
conclusions
allegations will not suffice.
While
the
complaint
masquerading
Conclusory
as
factual
Id.
need
not
contain
detailed
factual
allegations, the “[f]actual allegations must be enough to raise the
claimed right to relief above the speculative level,” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must create a
reasonable expectation that discovery will reveal evidence to
support the claim. Campbell v. PMI Food Equipment Group, Inc., 509
F.3d 776, 780 (6th Cir. 2007).
A complaint must contain facts
sufficient to “state a claim to relief that is plausible on its
face.”
Twombly, 550 U.S. at 570.
“The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Mandamus jurisdiction in federal courts is codified at 28
U.S.C. §1361, which provides: “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
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thereof to perform a duty owed to the plaintiff.”
“The existence
of jurisdiction under section 1361 is inextricably bound with the
merits of whether a writ of mandamus should issue; in order to
establish either jurisdiction or entitlement to the writ, a court
must find that a duty is owed to the plaintiff.”
814 F.2d 308, 310 (6th Cir. 1987).
Maczko v. Joyce,
Mandamus is available only if:
(1) the plaintiff has a clear right to relief; (2) the defendant
has a clear duty to act; and (3) there is no other adequate remedy
available to the plaintiff.
Carson v. United States Office of
Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011).
Mandamus is
not an appropriate remedy if the action that the petitioner seeks
to compel is discretionary.
Id.
Under 18 U.S.C. §3621(b), the Bureau of Prisons has the sole
discretionary authority to designate the place of an inmate’s
imprisonment. See 18 U.S.C. §3621(b)(“The Bureau may designate any
available penal or correctional facility” and “may at any time ...
direct the transfer of a prisoner from one penal or correctional
facility to another.”); Tapia v. United States, 131 S.Ct. 2382,
2390-91 (2011)(Bureau of Prisons has control over the place of a
prisoner’s imprisonment under §3621(b)); Dismas Charities, Inc. v.
U.S.
Dept.
of
Justice,
401
F.3d
666,
673
n.
4
(6th
Cir.
2005)(discretionary authority under §3621(b) to designate place of
confinement
for
federal
prisoners
rests
with
the
Bureau
of
Prisons); Klawonn v. United States 11 Fed.Appx. 559, 561 (6th cir.
2001)(decisions to place a defendant within a particular facility
are within the sole discretion of the Bureau of Prisons).
Because
the action relator seeks to compel–his reassignment to another
facility–is discretionary, relator has shown no clear right to
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relief or a clear duty on the part of respondents to act, and
mandamus is not the appropriate remedy.
In addition, there are other adequate remedies which are
available to relator.
A federal prisoner’s complaints about his
place of confinement challenge the manner in which the sentence is
being executed, and are therefore cognizable in a habeas petition
filed under 28 U.S.C. §2241(a) in the district court located in the
district in which the prisoner is incarcerated.
See United States
v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). Federal prisoners
complaining of events or conditions relating to their custody also
have administrative remedies afforded by the Bureau of Prisons
which must be exhausted prior to pursuing habeas relief under
§2241(a). Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981).
Because relator may seek administrative relief from the Bureau of
Prisons concerning his place of confinement, and, if such relief is
denied, may pursue habeas relief pursuant to §2241, mandamus relief
is not appropriate.
See United States v. Murillo-Payan, 157
Fed.Appx. 773, 774 (5th Cir. 2005).
III. Conclusion
In accordance with the foregoing, respondents’ motion to
dismiss (Doc. 4) is granted, and this case is dismissed.
This
dismissal is without prejudice to relator’s pursuit of other
avenues of relief through the Bureau of Prison’s administrative
remedies and 28 U.S.C. §2241(a).
Date: September 25, 2013
s/James L. Graham
James L. Graham
United States District Judge
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