Gratton v. White et al

Filing 5

REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Mandamus filed by Stephen Roy Gratton be dismissed without prejudice. Objections to R&R due by 3/20/2006. Signed by Judge William M Catoe on 3/1/06. (ladd, )

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Gratton v. White et al Doc. 5 6:06-cv-00459-MBS Date Filed 03/01/2006 Entry Number 5 Page 1 of 6 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Stephen Roy Gratton, #136990, Petitioner, vs. W illiam M. White, Warden, Broad River Correctional Institution; South Carolina Department of Corrections, State of South Carolina; and Henry McMaster, Attorney General for South Carolina, R e s p o n d e n ts . _________________________________________ ) C/A No. 6:06-459-MBS-WMC ) ) ) ) Report and Recommendation ) ) ) ) ) ) ) ) ) ) The petitioner, Stephen Roy Gratton ("Petitioner), proceeding pro se, brings this mandamus action pursuant to 28 U.S.C. 1651.1 Petitioner is an inmate at Broad River Correctional Institution (BRCI), a facility of the South Carolina Department of Corrections (SCDC), and files this action in forma pauperis under 28 U.S.C. 1915. The petition names as defendants the State of South Carolina, Attorney General of South Carolina and the Warden of BRCI.2 Petitioner seeks to have his state court conviction overturned, and release from incarceration. Petition at 8. The petition should be dismissed for failure to state a claim on which relief may be granted. Pursuant to the provisions of 28 U.S.C. 636(b)(1)(B), and Local Rule 73.02(B)(2), D.S.C., the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Title 28 U.S.C. 1915A (a) provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 2 1 6:06-cv-00459-MBS Date Filed 03/01/2006 Entry Number 5 Page 2 of 6 Pro Se and In Forma Pauperis Review Under established local procedure in this judicial district, a careful review has been made of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. 1915; 28 U.S.C. 1915A; and the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996). This review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc), cert. denied, 516 U.S. 1177 (1996); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). The complaint herein has been filed pursuant to 28 U.S.C. 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action "fails to state a claim on which relief may be granted" or is "frivolous or malicious." 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint "lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. 25, 31 (1992). Hence, under 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. Neitzke v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). This Court is required to liberally construe pro se documents, Estelle v. Gamble, 429 U.S. 97 (1976), holding them to a less stringent standard than those drafted by attorneys, Hughes v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard, 2 6:06-cv-00459-MBS Date Filed 03/01/2006 Entry Number 5 Page 3 of 6 however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, (4th Cir. 1990). Discussion The petition claims a miscarriage of justice based on violation of due process during Petitioner's state post-conviction proceedings. Petitioner contends the alleged constitutional violation entitles him to have this Court overturn his state court conviction, and order his release from prison. A mandamus action is not the correct avenue for federal review of state court convictions. Petitioner has previously filed an action for habeas relief pursuant to 28 U.S.C. 2254 in this Court, so he is aware of the appropriate action to file to have a federal court review a state court conviction. See Gratton v. State, 3 6:06-cv-00459-MBS Date Filed 03/01/2006 Entry Number 5 Page 4 of 6 C/A No. 6:01-1937 (D.S.C.).3 The petition fails to state a claim on which relief may be granted and should be dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(i). Mandamus is a drastic remedy to be used only in extraordinary circumstances. See Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). Mandamus relief is only available when there are no other means by which the relief sought could be granted, see In re Beard, 811 F.2d 818, 826 (4th Cir. 1987), and may not be used as a substitute for appeal, see In re Catawba Indian Tribe, 973 F.2d 1133, 1135 (4th Cir. 1992). The party seeking mandamus relief carries the heavy burden of showing that he has no other adequate means to attain the relief he desires and that his entitlement to such relief is clear and indisputable. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); Mallard v. United States Dist. Court, 490 U.S. 296, 308 (1989). The Fourth Circuit Court of Appeals has held that [t]he party seeking a writ of mandamus must satisfy the conditions of a rigorous test, demonstrating each and every one of the following requirements: (1) he has a clear and indisputable right to the relief sought; (2) the responding party has a clear duty to do the specific act requested; (3) the act requested is an official act or duty; (4) there are no other adequate means to attain the relief he desires; and (5) the issuance of the writ will effect right and justice in the circumstances. In re Braxton, 258 F.3d 250, 261 (4thCir. 2001), citing United States ex rel. Rahman v. Oncology Assocs., P.C., 198 F.3d 502(4th Cir. 1999). The petition fails the test put forth by the Court, as Petitioner can establish none of the conditions required. Most notably, Petitioner has an adequate means, through the provisions of 28 U.S.C. 2254, to In order for this Court to consider a second 2254 habeas petition, Petitioner must seek and obtain a Pre-Filing Authorization (PFA) from the United States Court of Appeals for the Fourth Circuit under 28 U.S.C. 2244(b)(3). 4 3 6:06-cv-00459-MBS Date Filed 03/01/2006 Entry Number 5 Page 5 of 6 collaterally attack his state conviction in federal court and seek to overturn his conviction. Since the petition fails to demonstrate one of the necessary conditions for the issuance of a writ of mandamus, the court need not look any further. It is noted however, that the petitioner also failed to demonstrate any of the remaining conditions set out in Braxton, supra. No extraordinary circumstances are presented by the petition to warrant the drastic remedy of a writ of mandamus. The petition for writ of mandamus should be dismissed. Recommendation Accordingly, it is recommended that the District Court dismiss the mandamus petition in the above-captioned case without prejudice and without issuance and service of process. See Denton v. Hernandez, supra; Neitzke v. Williams, supra; Haines v. Kerner, supra; Brown v. Briscoe, 998 F.2d 201, 202-204 & n. * (4th Cir. 1993); Boyce v. Alizaduh, supra; Todd v. Baskerville, supra, 712 F.2d at 74; 28 U.S.C. 1915A [as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal]. The plaintiff's attention is directed to the notice on the following page. s/William M. Catoe United States Magistrate Judge March 1, 2006 Greenville, South Carolina 5 6:06-cv-00459-MBS Date Filed 03/01/2006 Entry Number 5 Page 6 of 6 Notice of Right to File Objections to Magistrate Judge's "Report and Recommendation" & The Serious Consequences of a Failure to Do So T h e parties are hereby notified that any objections to the attached Report and Recommendation (or Order and R e c o m m e n d a t io n ) must be filed within ten (10) days of the date of service. 28 U.S.C. 636 and Fed. R. Civ. P. 72(b). T h e time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days fo r filing by mail. Fed. R. Civ. P. 6. A magistrate judge makes only a recommendation, and the authority to make a final d e t e r m i n a t i o n in this case rests with the United States District Judge. See Mathews v. W e b e r , 423 U.S. 261, 270-271 ( 1 9 7 6 ) ; and Estrada v. W itk o w s k i, 816 F. Supp. 408, 410 (D.S.C. 1993). D u r in g the period for filing objections, but not thereafter, a party must file with the Clerk of Court specific, w r itte n objections to the Report and Recommendation, if he or she wishes the United States District Judge to consider a n y objections. Any written objections must specifically identify the portions of the Report and Recommendation t o which objections are made and the basis for such objections. See Keeler v. Pea, 782 F. Supp. 42, 43-44 (D.S.C. 1 9 9 2 ) ; and Oliverson v. W e s t Valley City, 875 F. Supp. 1465, 1467 (D.Utah 1995). Failure to file specific, written o b j e c tio n s shall constitute a waiver of a party's right to further judicial review, including appellate review, if the r e c o m m e n d a t i o n is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 & n. 4 ( 4 t h Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and W r ig h t v. Collins, 766 F.2d 841, 845-847 & nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and R e c o m m e n d a t i o n , but does not file specific objections to other portions of the Report and Recommendation, that party w a iv e s appellate review of the portions of the magistrate judge's Report and Recommendation to which he or she did not o b j e c t. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation p r e c lu d e s that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v . Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See also Praylow v. M a r t i n , 761 F.2d 179, 180 n. 1 (4th C ir .) ( p a r ty precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 4 7 4 U.S. 1009 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient: A general objection to the entirety of the [magistrate judge's] report has the same effects a s w o u l d a failure to object. The district court's attention is not focused on any specific issues for r e v i e w , thereby making the initial reference to the [m a g i s t r a t e judge] u s e l e s s . * * * This d u p l i c a t io n of time and effort w a s t e s judicial resources rather than saving them, and runs contrary t o the purposes of the M a g i s t r a t e s A c t . * * * W e w o u l d hardly countenance an appellant's brief s i m p l y objecting to the district court's determination w i t h o u t explaining the source of the error. A c c o r d Lockert v. Faulkner, 843 F.2d 1015, 1017-1019 (7th Cir. 1988), where the Court held that the appellant, who p r o c e e d e d pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his o b j e c t i o n s to the district court: J u s t as a com p l a i n t stating only 'I complain' states no claim, an objection stating only 'I object' p r e s e r v e s no issue for review . * * * A district judge should not have to guess w h a t argum e n t s an o b j e c t i n g party depends on w h e n review i n g a [magistrate judge's] report. S e e also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)("no de novo review if objections are untimely or g e n e r a l" ) , which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd Cir. 1984)("plaintiff's objections This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See W r ig h t v. Collins, supra; and Small v. la c k e d the specificity to trigger de novo review"). S e c r e ta r y of HHS, 892 F.2d 15, 16 (2nd Cir. 1989). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished b y mailing objections addressed as follows: Larry W. Propes, Clerk United States District Court P. O. Box 10768 Greenville, South Carolina 29603

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