Brown v. Ebbert

Filing 8

MEMORANDUM and ORDER adopting 6 Report and Recommendation of Magistrate Judge Blewitt; OVERRULING petitioner's objections; DISMISSING petition for writ of mandamaus; granting 2 Motion for Leave to Proceed in forma pauperis for the filing of this action ; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 5/20/13 (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN L. BROWN,
Petitioner

:
No. 3:13cv873
:
:
(Judge Munley)
v.
:
: (Magistrate Judge Blewitt)
DAVID EBBERT, Warden,
:
Respondent
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is the report and recommendation of
Magistrate Judge Thomas M. Blewitt, which recommends dismissing
Petitioner Brian L. Brown’s case without prejudice to him raising his
constitutional claims in a Bivens civil rights action. Petitioner has filed
objections to the report and recommendation making this matter ripe for
disposition.
Background
Petitioner Brian Brown is currently an inmate in the Special Housing
Unit (“SHU”) at the United States Penitentiary Canaan (“USP-Canaan”),
Waymart, Pennsylvania. On April 8, 2013, he filed a pro se form petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Although
petitioner used a standardized section 2241 form, he indicates that instead
of seeking relief under section 2241, he seeks a writ of mandamus
compelling prison officials to allow him to file administrative remedies and
to protect him from physical assault from the guards. Magistrate Judge
Blewitt recommends that the petition be dismissed without prejudice to
petitioner raising his constitutional claims in a Bivens civil rights action.

Jurisdiction
We have jurisdiction pursuant to 28 U.S.C. § 2241, which provides
that “[w]rits of habeas corpus may be granted by the . . . district courts . . .
.” See also 28 U.S.C. § 1331(“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). To the extent that petitioner seeks a writ of
mandamus, we have jurisdiction under 28 U.S.C. § 1361 (“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 thereof to perform a duty owed to the plaintiff.”).
Standard of review
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report to which objections are made. 28 U.S.C. § 636
(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.
1987). This court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The district
court judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. Id.
Discussion
The report and recommendation indicates that petitioner seeks a writ
of mandamus. The magistrate judge reasoned as follows: A writ of
mandamus is extraordinary relief that may only be granted when no
alternative means for relief exist. Petitioner’s underlying claim deals with
the conditions of his confinement in a federal prison. Because petitioner
complains of the conditions of his confinement he could seek relief in a

2

federal civil rights action. Because he can obtain relief in a federal civil
rights action, a writ of mandamus is not needed. Accordingly, the
magistrate judge suggests dismissal of the instant petition without
prejudice to the petitioner filing a federal civil rights action. After a careful
review, we agree with the Magistrate Judge.
Petitioner seeks a writ of mandamus. Such a writ is only available in
“extraordinary circumstances.” In re Baldwin, 700 F.3d 122, 126 (3d Cir.
2012). “To obtain mandamus relief, the petitioner must establish both that
there is (1) no other adequate means to attain the relief sought, and (2) a
right to the writ that is clear and indisputable.” Id. at 127 (citations and
internal quotation marks omitted). Even if these requirements are met, the
issuance of the writ is still merely discretionary with the court. Id.
Here petitioner complains of his treatment at the prison. He asserts
that prison officials have beat him four times for trying to assert his
“administrative remedies.” (Doc. 7, Pet.’s Obj. at 2). Petitioner’s
allegations against the prison officials would thus potentially give rise to a
cruel and unusual punishment claim under the Eighth Amendment of the
United States Constitution. Petitioner could assert such a claim in a
“Bivens action.”
“A ‘Bivens action’ is a commonly used phrase for describing a
judicially created remedy allowing individuals to seek damages for
unconstitutional conduct by federal officials. This constitutional tort theory
was set out in Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).” Panton v.
B.O.P., 281 Fed. App’x 113, 114 n.1 (3d Cir. 2008). The United States
Supreme Court first recognized a private cause of action for damages

3

against federal officials for violation of the Fourth Amendment. See
Bivens, supra. The implied right of action, however, has been expanded to
include Eighth Amendment cruel and unusual punishment claims. Carlson
v. Green, 446 U.S. 14 (1980); Bistrain v. Levi, 696 F.3d 352, 366 (3d Cir.
2012).
Thus, petitioner could seek relief through a Bivens action. Because
he has this means to attain relief, a writ of mandamus is not appropriate.
In re Baldwin, 700 F.3d at 126-27. Accordingly, the petition will be denied
without prejudice. An appropriate order follows.1

1

The original petition complains about the writing instruments that the
prison provided to petitioner. He claimed that he only had a gray crayon
with which to prepare documents. (Doc. 1, Pet. at 8). This matter has
evidently been resolved, however, as petitioner’s objections were
typewritten.
4

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN L. BROWN,
Petitioner

:
No. 3:13cv873
:
:
(Judge Munley)
v.
:
:(Magistrate Judge Blewitt)
DAVID EBBERT, Warden,
:
Respondent
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 20th day of May 2013, it is hereby ORDERED
as follows:
1) The Magistrate Judge’s report and recommendation (Doc. 6) is
ADOPTED;
2) Petitioner’s objections (Doc. 7) are OVERRULED;
3) The petition for a writ of mandamus (Doc. 1) is DISMISSED
without prejudice;
4) Petitioner’s motion for leave to proceed in forma pauperis (Doc. 2)
is GRANTED solely for the purpose of filing this action; and
5) The Clerk of Court is directed to close this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
5