Searcy v. Inmate Paletz et al

Filing 6

REPORT AND RECOMMENDATION recommending 1 Complaint filed by Edgar Searcy be dismissed without prejudice and that this action be deemed a strike pursuant to 28 USC §1915(g). Objections to R&R due by 6/19/2007. Signed by Judge William M Catoe on 5/30/07. (Attachments: # 1 Objection notice)(ladd, )

Searcy v. Inmate Paletz et al

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Date Filed 05/30/2007

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA

E d g a r Searcy, # 04726-031, a k a Edgar Joe Searcy,

) ) ) ) P la in t if f , ) vs . ) ) N F N Paletz, inmate; ) F e d e ra l Bureau of Investigation; ) U . S. Attorney General; and ) F e d e ra l Bureau of Prisons, ) ) D e f e n d a n ts . ) _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ )

C/A No. 6:07-1389-GRA-W M C

R e p o rt and Recommendation

In tr o d u c tio n T h e plaintiff, Edgar Searcy, proceeding pro se, brings this action pursuant to the C r im e Victims' Rights Act, 18 U.S.C. § 3771, and Bivens v. Six Unknown Named Agents, 4 0 3 U.S. 388, 397 (1971).1 Plaintiff is an inmate at Estill Federal Correctional Institution, a n d he files this action under 28 U.S.C. § 1915 seeking to proceed without prepayment of th e filing fee. The complaint names two federal agencies, a federal inmate, and the A t to rn e y General of the United States as defendants.2 Plaintiff claims that defendant P a le tz , an inmate, attacked and hit him in the throat on or about September 17, 2006, while b o t h the plaintiff and Paletz were working at Food Services. Plaintiff alleges that he is a

Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2)(d), 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 redres s from a governmental entity or officer or employee of a governmental entity."
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"v ic tim " under the Crime Victim Rights' Act, and he seeks certain relief available to victims u n d e r that Act. Liberally construed, the plaintiff also alleges claims under Bivens 3 for a due p ro c e s s violation and an Eighth Amendment violation for failure to protect his safety. The c o m p la in t should be dismissed without service of process for failure to state a claim upon w h ic h relief may be granted.

R e v ie w pursuant to the Prison Litigation Reform Act (PLRA) U n d e r established local procedure in this judicial district, a careful review has been m a d e of the pro se complaint pursuant to the procedural provisions of 28 U.S.C. § 1915; 2 8 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1 3 2 1 (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); H a in e s v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 ( 4 th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4 th Cir. 1983).

In Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971), the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. "Bivens is the case establishing, as a general proposition, that vic tim s of a constitutional violation perpetrated by a federal actor may sue the offender for damages in federal court despite the absence of explicit statutory authorization for such suits." Wright v. Park, 5 F.3d 586 , 589 n. 4 (1st Cir. 1993) (citing, inter alia, Carlson v. Green, 446 U.S. 14, 18 (1980) (restating Bivens rule)). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983: federal officials cannot be sued under 42 U.S.C. § 1983 because they do not act under color of state law. See Harlow v. Fitzgerald, 457 U .S . 800, 814-820 & n. 30 (1982). Harlow, which is often cited for the principle of the qualified immunity of state officials for acts within the scope of their employment, was brought against a federal official. In footnote 30 of the opinion in Harlow, the Supreme Court stated that Harlow was applicable to state officials sued under 42 U.S.C. § 1983. In other words, case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Bolin v. Story, 225 F.3d 1234, 1241-1242 (11th Cir. 2000).

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T h e complaint herein has been filed pursuant to 28 U.S.C. § 1915, which permits an in d ig e n t litigant to commence an action in federal court without prepaying the administrative c o s ts of proceeding with the lawsuit. To protect against possible abuses of this privilege, t h e statute allows a district court to dismiss the case upon a finding that the action "fails to s t a t e 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 a r g u a b le basis either in law or in fact." Denton v. Hernandez, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. N e itzk e v. Williams, 490 U.S. 319 (1989); Allison v. Kyle, 66 F.3d 71 (5 th Cir. 1995). T h is 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, H u g h e s v. Rowe, 449 U.S. 9 (1980) (per curiam). Even under this less stringent standard, h o w e ve r, the pro se complaint is subject to summary dismissal. The mandated liberal c o n s t ru c t io n afforded to pro se pleadings means that if the court can reasonably read the p le a d in g s to state a valid claim on which the plaintiff could prevail, it should do so, but a d is t ric t court may not rewrite a petition to include claims that were never presented, Barnett v . Hargett, 174 F.3d 1128, 1133 (10 th Cir. 1999), or construct the plaintiff's legal arguments f o r him, Small v. Endicott, 998 F.2d 411, 417-18 (7 th Cir. 1993), or "conjure up questions n e v e r squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4 th Cir. 1985). The requirement of liberal construction does not mean that the court can ig n o r e a clear failure in the pleading to allege facts which set forth a claim currently c o g n iz a b le in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, (4th Cir. 1 9 9 0 ).

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P l a in tiff's Prior Litigation in Other Jurisdictions T h e plaintiff is serving a one hundred eighty (180) m o n t h sentence as a career o f f e n d e r for a conviction of using interstate commerce (the internet) to engage in sexual a c t iv it y with a minor.4 United States v. Searcy, 299 F.Supp.2d 1285, 2003 U.S.Dist. L E X I S ® 24093 (S.D.Fla. 2003), affirmed, 418 F.3d 1193, 2005 U.S.App. LEXIS® 15426 ( 1 1 t h Cir. 2005), cert. denied, Searcy v. United States, 126 S.Ct. 1007 (U.S., January 9, 2 0 0 6 ). The district court in Florida granted the government's motion for an upward

d e p a rtu re (on the basis that the plaintiff was a recidivist) and sentenced the plaintiff to the m a x im u m of one hundred eighty (180) months. T h e opinions in United States v. Searcy at both the district court and circuit court le v e l indicate that the plaintiff has prior convictions (relating to sexual activity with minors) in Kansas and Florida. See also Searcy v. Simmons, 299 F.3d 1220, 1222, 2002 U.S.App. L E X I S ® 16653 (10th Cir. 2002) (noting that in January of 1997, the petitioner pled nolo c o n t e n d e r e to sexual exploitation of a child and was sentence to sixty-five months in p r is o n ) . The State of Kansas had attempted to commit the plaintiff as a sexual predator, b u t was unable to do so because the State of Kansas had not tried the plaintiff within the s ix ty-d a y deadline of the plaintiff's waiver of a probable cause hearing. In the Matter of the C a re and Treatment of Edgar J. Searcy, 274 Kan. 130, 131, 49 P.3d 1, 3, 2002 Kan.

The undersigned takes judicial notice of the plaintiff's prior litigation in other jurisdictions, similar to the Order of this Court in Searcy v. NFN Skinner, No. 6:06-cv-1418-GRA-W MC , 2006 WL 1677177 at **4-5 (D.S.C. 2006). The Court may take judicial notice of proceedings had before it in a prior suit with the same parties. Mann v. Peoples First Nat. Bank & Trust Co., 209 F.2d 570, 572 (4th Cir. 1954); see a ls o Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("'[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.'").

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L E X I S ® 430 (2002) (noting that the plaintiff's Florida convictions arose out of two separate m a r ria g e s where the plaintiff molested step-daughters in each marriage). T h e United States District Court for the Middle District of Florida dismissed with p re ju d ic e a suit by the plaintiff against the Microsoft Corporation and the America On Line C o r p o r a t io n for failure to state a claim upon which relief can be granted. See Edgar Searcy v . Microsoft Corp., 2005 W E S T L A W ® 1163114 (M.D. Fla. May 4, 2005), where the plaintiff s o u g h t damages for use of a software device that surreptitiously records a computer user's in te rn e t and e-mail activities and stores them on the computer. The district court in Florida a ls o relied on Eleventh Circuit case law allowing a district court to take into account prior lit ig a tio n in dismissing a questionable claim, and noted that the plaintiff had brought twentytw o (22) federal cases and had been involved in thirty-one (31) cases as a named party. S e a rc y v. Microsoft Corp., 2005 W E S T L A W ® 1163114, at * 3 & nn. 14-15.5

P la i n t iff's Prior Litigation in this District Court In Searcy v. NFN Skinner, No. 6:06-cv-1418-GRA-W M C , 2006 W L 1677177 (D.S.C. 2 0 0 6 ), this plaintiff sued a different inmate based upon that inmate's attacking him in D e c e m b e r of 2005 at FCI-Bennettsville. In that case, after a Report and Recommendation w a s issued which recommended dismissal of the case without prejudice and without service o f process, the plaintiff raised an objection to the District Court based upon the Crime V ic t im s ' Rights Act, 18 U.S.C. § 3771. Notably, this District Court found that the plaintiff

All of the cases listed by the United States District Court for the Middle District of Florida in Searcy v . Microsoft were filed prior to the enactment of the Prison Litigation Reform Act (PLRA) in 1996. Hence, it cannot be determined whether the plaintiff has "struck out" under the PLRA.

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m is c o n s tru e d the intent of § 3771, because where the Assistant United States Attorney had d e c lin e d to "bring a criminal prosecution against Defendant, ... Plaintiff may not use § 3771 a s [a] mechanism to bring an action against Defendant directly." Id. at *2. Plaintiff

a p p e a le d the District Court's summary dismissal, but the Fourth Circuit Court of Appeals l a t e r dismissed the appeal for failure to prosecute. See Docket Entry 18 in No. 6:06-cv1 4 1 8 -G R A - W M C .6

F a c tu a l Background T h e plaintiff alleges that at 7:45 a.m. on September 17, 2006, at FCI-Estill, while he w a s performing his sanitation job in the Food Services area he found a bag of ripe v e g e ta b le s that he decided must be disposed of, but that inmate Paletz advised the plaintiff t h a t the bag of vegetables belonged to Paletz. W h e n the plaintiff would not give the bag o f vegetables to Paletz, defendant Paletz attacked the plaintiff by hitting him in the throat. T h e plaintiff alleges that no federal employees were in the kitchen area supervising the in m a te s . The plaintiff searched for a federal employee and reported the attack. Defendant P a le tz was taken to confinement, and plaintiff was checked by medical for injuries and then re tu rn e d to his job. The plaintiff alleges that 12 hours after the attack, the Bureau of Prisons (B O P ) staff placed him in confinement. He alleges that both he and Paletz were kept in c o n f i n e m e n t until they were released on December 21, 2006 (92 days) and then they were a s s ig n e d to the same housing unit. Plaintiff alleges that Paletz was permitted to return to h is job and earn income but that plaintiff was not permitted to return to his same job.

Plaintiff filed several other actions in this District Court which are not discussed herein because they are not related nor similar to the civil action sub judice.

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D u rin g October, 2006, the plaintiff alleges that he wrote several letters to the Federal B u re a u of Investigation (FBI) seeking to have Paletz prosecuted, but the FBI did not r e s p o n d . Plaintiff alleges that the BOP did not bring charges against nor discipline Paletz f o r the crime he committed when he attacked the plaintiff.

D i s c u s s io n I. Crime Victim Rights' Act In his complaint, plaintiff relies heavily on his alleged rights pursuant to the Crime V ic tim Rights' Act (CVRA), 18 U.S.C. § 3771. He alleges that he is the "victim" of a crime c o m m itte d by defendant Paletz on September, 17, 2006. He asserts that he has not been tre a te d with fairness and dignity as the Act requires, and he seeks relief available under 18 U . S . C . § 3771(a), including restitution and that he be housed apart from Paletz. W h i l e p la in tif f is correct that the CVRA gives a victim the right to file a motion for relief in federal d is t ric t court, see 18 U.S.C. § 3771(d)(3), plaintiff m u s t first satisfy the Act's statutory d e f in itio n of "victim." In the plaintiff's previous case related to an attack by a different in m a t e , Searcy v. NFN Skinner, C/A No. 6:06-1418-GRA-W M C , 2006 W L 1677177, District J u d g e G. Ross Anderson found that "`the CVRA does not grant victims any rights against in d iv id u a ls who have not been convicted of a crime.'" Id. at *2. Judge Anderson held that w h e re the Assistant United States Attorney had "declined" to bring a criminal prosecution a g a in s t the attacker inmate, the plaintiff could not use the CVRA as a mechanism to bring h is own action against the inmate. Id. In this action, the plaintiff, who alleged that the BOP d id not charge defendant Paletz with a crime, is attempting to do just what Judge Anderson to ld him he could not do in Searcy v. NFN Skinner.

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O th e r courts and the Attorney General have interpreted the CVRA definition of "v ic tim " slightly differently to require the existence of a prosecutor's charging instrument in s t e a d of the existence of a conviction. E.g., United States v. Turner, 367 F.Supp.2d 319, 3 2 6 (E.D.N.Y. 2005) (The court interpreted the CVRA definition of "victim" to include "any p e rs o n who would be considered a `crime victim' if the government were to establish the t ru t h of the factual allegations in its charging instrument."); Attorney General Guidelines for V ic tim and W it n e s s Assistance, May 2005, Article II.D.1, defines a victim as "a person d ir e c t ly and proximately harmed as a result of the commission of a Federal offense... if the o f fe n s e is charged in Federal district court." (The language in italics is not found in the C V R A statutory definition.)7 T h e CVRA clearly states that "nothing in this chapter shall be construed to impair the p r o s e c u t o ria l discretion of the Attorney General or any officer under his direction." 18 U .S .C . § 3771(d)(6). The Attorney General delegated its responsibilities under the CVRA to the Director or W a rd e n of each Bureau of Prisons facility for cases in which the BOP has b e c o m e involved. See Attorney General Guidelines for Victim and W itn e s s Assistance, M a y 2005, Article II.F.3.b. In this case, where the BOP decided not to charge defendant in m a te Paletz with a crime nor subject him to discipline for the alleged attack on the plaintiff, th a t decision was the exercise of prosecutorial discretion. The plaintiff cannot use the C V R A to impair the BOP's prosecutorial discretion, and the plaintiff does not come within th e definition of "victim." Therefore, this Court should dismiss all of the plaintiff's claims that a re brought pursuant to the CVRA. Furthermore, because this District Court had held in

The Attorney General Guidelines for Victim and Witness Assistance, May 2005, is located on the D e p artm e nt of Justice website -- Office for Victims of Crime -- publications.

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p la in t if f 's prior lawsuit against inmate Skinner that the plaintiff could not use the CVRA to b r in g his own action against an inmate, and the plaintiff in this action is attempting to s im ila r ly use the CVRA for an improper purpose, the undersigned recommends that this a c t io n be deemed a "strike."

I I. Failure to protect against an inmate assault A n inmate may state a Bivens Eighth Amendment constitutional claim for deliberate in d if f e r e n c e to an excessive risk to the inmate's safety. Pressly v. Hutto, 816 F.2d 977, 979 ( 4 th Cir. 1987). A prison official cannot be liable under the Eighth Amendment for an inmate a tta c k against another inmate unless the prison official knew of and disregarded the e x c e s s iv e risk of violence. Farmer v. Brennan, 511 U.S. 825, 838 (1994). Here, the plaintiff h a s alleged no facts against any prison official that would support a claim of deliberate in d if f e r e n c e to his safety; therefore, he failed to state a claim pursuant to the Eighth A m e n d m e n t . Accordingly, this Court should summarily dismiss the plaintiff's claim.

III. Due process violation A inmate may state a Bivens due process violation if he was subjected to arbitrary p u n is h m e n t by prison officials, but the inmate must show that "his punishment was not `w it h i n the normal limits or range of custody which the conviction has authorized the State t o impose.'" Moorehead v. Bledsoe, C/A No. 705cv00059, 2005 W L 3939963 (W .D . Va. 2 0 0 5 ) , aff'd No. 05-6249, 2005 W L 1820567 (4 th Cir. 2005). See also Woodley v. Dep't of C o r r., No. 90-6396, 1991 W L 91407 (4 th Cir. 1991) (allegation that inmate was put into s e g re g a tio n in retaliation for filing grievances may state a claim). The plaintiff alleges that

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a s a result of reporting inmate Paletz's attack against him, plaintiff was placed into c o n f in e m e n t for 92 days. Liberally construed, the plaintiff claims a due process violation f o r arbitrary punishment. This type of a Bivens claim may be brought against a prison o f f ic ia l for monetary damages. However, this claim is subject to summary dismissal

b e c a u s e the plaintiff does not bring it against a proper defendant and the plaintiff does not s e e k relief which m a y be granted. Even liberally construed, the plaintiff does not allege m o n e ta ry damages against a responsible prison official.

I V . Named defendants In this Bivens action, the plaintiff cannot bring suit against another inmate because t h e inmate, defendant Paletz, did not act under "color of state or federal law." In order to s ta te a cause of action under 42 U.S.C. § 1983 or under the Bivens doctrine, a plaintiff must a lle g e that: (1) the defendant deprived him or her of a federal right, and (2) did so under c o lo r of state law or federal law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980); and A m e ric a n Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-52 (1999). See also Hall v. Quillen, 6 3 1 F.2d 1154, 1155-1156 & nn. 2-3 (4th Cir. 1980). The district court in Hall v. Quillen had disposed of the case against a physician and a court-appointed attorney on grounds of immunity. In affirming the district court's order, th e Court of Appeals, however, indicated that lower courts should first determine whether s ta te action occurred: * * * But immunity as a defense only becomes a relevant issue in a case such a s this if the court has already determined affirmatively that the action of the d e f e n d a n t represented state action. This is so because state action is an e s s e n t ia l preliminary condition to § 1983 jurisdiction, and a failure to find state a c tio n disposes of such an action adversely to the plaintiff. * * *

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Id . at 1155. See also Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) ("Careful a d h e r e n c e to the 'state action' requirement . . . also avoids imposing on the State, its a g e n c ie s or officials, responsibility for conduct for which they cannot fairly be blamed."). A lt h o u g h a private individual or corporation can act under color of state law, his, her, o r its actions must occur where the private individual or corporation is a willful participant in joint action with the State or with an agent of the State. Dennis v. Sparks, 449 U.S. 24, 2 7 -2 8 (1980). Purely private conduct, no matter how wrongful, injurious, fraudulent, or d is c rim in a to ry, is not actionable under 42 U.S.C. § 1983 or under the Bivens doctrine. See L u g a r, 457 U.S. at 936; and Burton v. Wilmington Parking Authority, 365 U.S. 715, 721 (19 6 1 ). Even if the plaintiff alleged a state law tort claim seeking damages or "restitution" (for s ix months of lost wages at $87.00 per month) against defendant Paletz, it is clear from the f a c e of the complaint that the amount in controversy in this case is far below $75,000. As a result, this case is not maintainable as a diversity action because the jurisdictional amount ($ 7 5 ,0 0 0 ) of 28 U.S.C. § 1332 is not satisfied, even though complete diversity of parties m a y exist in this case.8 See Dixon v. Edwards, 290 F.3d 699, 710-711 (4 th Cir. 2002). T h e plaintiff also named two defendants, Federal Bureau of Investigation and F e d e ra l Bureau of Prisons, which are agencies, buildings, or institutions. It is well settled th a t only "persons" may act under color of state or federal law, therefore, a defendant in a
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The plaintiff appears to have been a resident of Florida prior to his current federal incarceration; defendant Paletz's domicile prior to his incarceration is unknown. Most cases have uniformly held that incarceration does not change a prisoner's domicile for purposes of the diversity statute. See Polakoff v. Henderson, 370 F. Supp. 690, 693 (N.D.Ga. 1973) ("A prisoner does not acquire a new domicile in the place of incarceration, but retains the domicile he had prior to incarceration."), aff'd, 488 F.2d 977 (5th Cir. 1974); and Jones v. Hadican, 552 F.2d 249, 250 (8th Cir. 1977) (per curiam) ("With respect to the domicile of prisoners, the traditional rule is that a prisoner does not acquire a new domicile when he is incarcerated in a different state; instead he retains the domicile he had prior to his incarceration.").

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s e c t io n 1983 or Bivens action must qualify as a "person." Inanimate objects such as b u ild in g s , facilities, and grounds cannot act under color of state law. Hence, the Federal B u re a u of Investigation and Federal Bureau of Prisons are not "persons" subject to suit u n d e r 42 U.S.C. § 1983. See Allison v. California Adult Auth., 419 F.2d 822, 823 (9th Cir. 1 9 6 9 ) (California Adult Authority and San Quentin Prison not "person[s]" subject to suit u n d e r 42 U.S.C. § 1983); Preval v. Reno, 57 F.Supp.2d 307, 310 (E.D. Va. 1999) ("[T]he P ie d m o n t Regional Jail is not a `person,' and therefore not amenable to suit under 42 U . S . C . § 1983."), aff'd in part and vacated in part on other grounds, No. 99-6950, 2000 W L 2 0 5 9 1 (4 th Cir. 2000); Brooks v. Pembroke City Jail, 722 F. Supp. 1294, 1301(E.D. N . C . 1989) ("Claims under § 1983 are directed at `persons' and the jail is not a person a m e n a b le to suit."). The Federal Bureau of Investigation and the Federal Bureau of Prisons a re not proper party defendants in this Bivens action and should be dismissed. The plaintiff further named the United States Attorney General, who is a person, as a defendant. However, the complaint does not allege any facts against him. If the plaintiff s u e d the Attorney General in his supervisory capacity, the action fails. It is well-settled that th e doctrine of vicarious liability and the doctrine of respondeat superior are not applicable in § 1983 actions. Vinnedge v. Gibbs, 550 F.2d 926, 927-929 (4th Cir. 1977); See Polk C o u n ty v. Dodson, 454 U.S. 312, 325 (1981) ("Section 1983 will not support a claim based o n a respondeat superior theory of liability.") Section 1983 liability on the part of a

s u p e rv is o ry defendant requires a showing that the supervisory defendant tacitly authorized o r was indifferent to the prison official's actions which violate constitutional rights. Miltier v . Beorn, 896 F.2d 848 (4 th Cir. 1990). The plaintiff makes no factual allegations against

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th e defendant Attorney General to indicate his authorization or indifference; accordingly, he s h o u ld be dismissed.

V . Prosecution of Defendant Paletz P la in tif f cannot have this Court order a defendant to prosecute criminal charges a g a in s t defendant Paletz because "[n]o citizen has an enforceable right to institute a c r im in a l prosecution." Lopez v. Robinson, 914 F.2d 486, 494 (4 th Cir. 1990) (citing Linda R . v. Richard V., 410 U.S. 614, 619 (1973) ("In American jurisprudence at least, a private c itiz e n lacks a judicially cognizable interest in the prosecution or nonprosecution of a n o t h e r.")). Further, prosecutorial discretion does not reside in the judicial branch; the d e c is io n whether or not to prosecute, and what charge to file or bring, generally rests within t h e prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also U n ite d States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).

V I . Mandamus relief The plaintiff's complaint states that pursuant to 28 U.S.C. § 1361 he seeks to e n f o rc e federal employees to perform their jobs. From the totality of the complaint, this C o u rt construes that the plaintiff seeks a writ of mandamus to compel the Federal Bureau o f Investigation and Federal Bureau of Prisons to perform their duties. A writ of mandamus is issued only in the rarest of circumstances. U.S. v. Sosa, 364 F.3d 507, 511 (4 th Cir. 2 0 0 4 ). In Sosa, the Fourth Circuit explained that when a litigant seeks mandamus relief he m u s t show that, "`he had no other adequate means to attain the relief he desires' and that h is right to issuance of the writ is `clear and indisputable.'" Id. See also In re Pruett, 133

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F .3 d 275, 281 (4 th Cir. 1997).

The plaintiff's right to issuance of the writ is far from

in d is p u t a b le because the plaintiff seeks to compel the federal agencies to prosecute d e f e n d a n t Paletz, and, as explained above, the plaintiff cannot force a prosecution. A c c o rd in g ly, the plaintiff's request for mandamus relief should be dismissed.

R e c o m m e n d a tio n A c c o r d i n g ly, it is recommended that the District Court dismiss the complaint in the a b o v e -c a p tio n e d case without prejudice and without issuance and service of process. See N e itzk e v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); a n d 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review p r is o n e r cases to determine whether they are subject to summary dismissal). Pursuant to 2 8 U.S.C. § 1915; 28 U.S.C. § 1915A; and the Prison Litigation Reform Act, Pub. L. No. 1 0 4 - 1 3 4 , 110 Stat. 1321 (1996), it is further recommended that this action be deemed a " s t r ik e " for purposes of the "three strikes" rule of 28 U.S.C. § 1915(g). The petitioner's a tte n tio n is directed to the important notice on the next page.

M a y 30, 2007 G re e n v ille , South Carolina

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