Montgomery v. Warden Ross Correctional Institution

Filing 2

REPORT AND RECOMMENDATIONS that Plaintiff's 1 Writ of Mandamus be DISMISSED without prejudice to refiling as set forth herein; and the case be terminated on the docket of this Court. Objections to R&R due by 1/26/2015. Signed by Chief Magistrate Judge Sharon L. Ovington on 1-9-15. (mcm1) (This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ALBERT MONTGOMERY,
Plaintiff,

:
:

Case No. 3:15cv0005

vs.

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

WARDEN HOOKS,
Ross Correctional Institution, et al.,

:
:

Defendants.

REPORT AND RECOMMENDATIONS1

Plaintiff Albert Montgomery is an inmate at the Ross Correctional Institution in
Chillicothe, Ohio. He brings this matter pro se by submitting a document captioned,
“Writ of Mandamus.” He has yet to pay the filing fee or submit an application to proceed
in forma pauperis. As a result, initial review of his Writ of Mandamus is warranted to
determine if it is “frivolous, malicious, or fails to state a claim upon which relief can be
granted.” 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1); see Brand v. Motley, 526 F.3d 921, 923
(6th Cir. 2008).
Montgomery explains that on April 30, 2013, he was found guilty in the Franklin
County, Ohio Court of Common Pleas (case no. CPC 12-CR-11-6125) on three charges of
1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

trafficking in cocaine and manufacturing cocaine. He was sentenced to 16 years of
imprisonment. This sentence, he argues, was “well beyond the federal guidelines, Senate
Bill 86.” (Doc. #1, PageID at 1). He further argues that there was no evidence
supporting his convictions – no DNA or fingerprint evidence, no video or audio
recordings, no marked bills, and no clear description of the man two witnesses identified
as Montgomery. And he asserts that his constitutional rights have been violated and asks
the Court to protect him “from further abuse.” Id., PageID at 2. The relief Montgomery
seeks is an Order granting him asylum and stopping the “defendants from doing this to
others.” Id.
Under the Federal Rules of Civil Procedure, the writ of mandamus has been
abolished. Fed. R. Civ. P. 81(b). Yet, the All Writs Act broadly authorizes federal courts
to “issue all writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to usages and principles of law.” 28 U.S.C. §1651(a). The All Writs Act does
not independently confer federal jurisdiction. Privett v. Pellegrin, 1986 WL 16899, at *1
(6th Cir. 1986) (citing Haggard v. Tennessee, 421 F.2d 1384 (6th Cir. 1970)).
In the present case, the mandamus statute that potentially creates original federal
jurisdiction in the U.S. District Courts applies to “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. This statute fails to provide this Court with
original jurisdiction over Montgomery’s “Writ of Mandamus” because he seeks

2

mandamus relief against state, not federal, officials – specifically, the Warden of Ross
Correctional Institution, the Ohio Governor, and Franklin County Judge Hogan.
Additionally, Montgomery would be entitled to mandamus relief only when there
is no other adequate remedy available to him. See Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33, 35 (1980); see also Carson v. U.S. Office of Special Counsel, 633 F.3d 487,
491 (6th Cir. 2011). Montgomery’s Writ of Mandamus seeks relief from his convictions
in state court. Such relief is potentially available by way of a petition for writ of habeas
corpus under 28 U.S.C. §2254, after Montgomery fully exhausts his remedies in the Ohio
courts. See 28 U.S.C. §§ 2254(b), (c); see also Picard v. Connor, 404 U.S. 270, 275
(1971). As a result, dismissal of Montgomery’s Writ of Mandamus is warranted. Such
dismissal should be without prejudice to refiling, after full exhaustion, a Petition for Writ
of Habeas Corpus under §2254. In the event Montgomery chooses to file a petition for
writ of habeas corpus, he must do so in U.S. District Court, Southern District of Ohio,
Eastern Division in Columbus, Ohio. See 28 U.S. §2241(a); see also S.D. Ohio Civ. R.
82.1(b).
Accordingly, Montgomery’s Writ of Mandamus lacks an arguable basis in law. It
is therefore frivolous and subject to sua sponte dismissal under 28 U.S.C. §§1915(e)(2),
1915A(b)(1). See Brand, 526 F.3d at 923 (and cases cited therein).
IT IS THEREFORE RECOMMENDED THAT:
1.

Montgomery’s Writ of Mandamus (Doc. #1) be DISMISSED without
prejudice to refiling, in the U.S. District Court for the Southern District of
3

Ohio, Eastern Division in Columbus, Ohio, as a petition for writ of habeas
corpus under 28 U.S.C. §2254 after exhaustion of state remedies; and
2.

The case be terminated on the docket of this Court.

January 9, 2015
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

4

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and Recommendation
is based in whole or in part upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

5