United States District Court, N.D. Georgia, Atlanta Division
November 17, 2014
TESS HOLLIS ANDRIATTI, Plaintiff,
SHERIFF JOE CHAPMAN and JUDE K. WYNNE, Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Gerrilyn G. Brill's Final Report and Recommendation  ("R&R"). The R&R considers Plaintiff Tess Hollis Andriatti's ("Plaintiff") Complaint for Mandamus Relief  ("Complaint"). The Magistrate Judge recommended that the Complaint be dismissed pursuant to 28 U.S.C. § 1915A. Also pending before the Court is Plaintiff's "Motion for Default Judgment as to Joe Chapman  ("Motion for Default").
On March 26, 2014, Plaintiff, an inmate at the Cobb County Adult Detention Center in Marietta, Georgia, filed her Complaint, requesting that the Court issue a writ of mandamus "against Judge Wynne and Sheriff Joe Chapman and the clerk of the Court in order to compel the clerk of the Court to issue [a] Writ of Habeas Corpus in this case." (Complaint at 1). Plaintiff states that she has been imprisoned against her will for a "victimless crime, " and that the state court lacks personal jurisdiction over her because she is a 69-year-old woman. (Id.). The Court construes Plaintiff's Complaint as a request that the Court issue a writ of mandamus compelling the state court to release her from custody.
On April 1, 2014, the Magistrate Judge recommended that the Complaint be dismissed with prejudice. The Magistrate Judge noted that Plaintiff raised the same claims and sought the same relief in an earlier proceeding (13-cv-4033), and recommended dismissing this case for the same reasons set forth in the Magistrate Judge's prior Report and Recommendation, specifically that the Court did not have authority to issue a writ of mandamus compelling state officers or the state court to perform their official duties. Petitioner did not object to the Magistrate Judge's R&R. On June 16, 2014, Petitioner filed her Motion for Default Judgment.
A. Standard of Review
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which a party has not asserted objections, the district judge must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
Plaintiff has not filed objections to the Magistrate Judge's finding that her Complaint fails to state a claim. The Court thus reviews the Magistrate Judge's findings and recommendations for plain error. See Slay 714 F.2d at 1095. The Magistrate Judge found that Plaintiff was not entitled to a writ of mandamus to direct state officers or the state court in the performance of their official duties, and properly recommended that the Court dismiss the Complaint. See Bailey v. Silberman, 226 F.Appx. 922, 924 (11th Cir. 2007) (citing 28 U.S.C. § 1361 & Moye v. Clerk, DeKalb Cnty. Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973)). The Court finds no plain error in the Magistrate Judge's findings or recommendations. See Slay, 714 F.2d at 1095.
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill's Final Report and Recommendation  is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff's Complaint  is DISMISSED for failure to state a claim.
IT IS FURTHER ORDERED that Plaintiff's Motion for Default Judgment as to Joe Chapman  is DENIED.