United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF
an inmate at Augusta State Medical Prison
(“ASMP”) in Grovetown, Georgia, ostensibly brings
this action seeking mandamus relief. After prompting from the
Clerk of Court, (doc. no. 2), Petitioner paid the filing
Notwithstanding the payment of the filing fee, the case or
any portion thereof may be dismissed if it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, or if it seeks monetary relief from a defendant who
is immune to such relief. See Leal v. Georgia Dep't
of Corr., 254 F.3d 1276, 1277-78 (11th Cir. 2001)
(per curiam); 28 U.S.C. § 1915A.
names the following Respondents: (1) Scott Wilkes, former
Warden at ASMP; (2) Nathan Deal, Governor of Georgia; and (3)
Sam Olens, former Attorney General for the State of Georgia.
(See doc. no. 1, pp. 1, 4.) Petitioner spends
seventeen of the eighteen substantive pages of his petition
for a writ of mandamus detailing alleged errors with his
underlying state court murder conviction. His discussion
includes various theories of self-defense, (id. at
3-5), alleged racial bias by the trial court judge and jury,
(id. at 6-8), and alleged improper jury instructions
and evidentiary rulings, (id. at 9-13, 18).
Petitioner also alleges he has been denied parole in
violation of the American with Disabilities Act
(“ADA”) because his physical disability has
somehow been improperly considered to support the decision to
deny him parole. (Id. at 14-16.) For good measure,
Petitioner also details alleged sexual misconduct and alleged
retaliation by a prison guard who is not named as a
respondent in his mandamus petition. (Id. at 17.)
motion to supplement and request to amend his petition,
Petitioner invokes Federal Rule of Procedure 60(b) and cites
Supreme Court case law from 2017 in support of his continuing
challenges to his underlying conviction. (See doc.
no. 7.) Petitioner contends racial animus played an improper
role in his conviction, he shot his victim in self-defense,
and improper jury instructions were given at his trial.
Legal Standard for Screening
forth above, the case or any portion thereof may be dismissed
if it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, or if it seeks monetary relief
from a defendant who is immune to such relief. See
28 U.S.C. §§ 1915(e)(2)(B) &
1915A. A claim is frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989). “Failure to
state a claim under § 1915(e)(2)(B)(ii) is governed by
the same standard as dismissal for failure to state a claim
under Fed.R.Civ.P. 12(b)(6).” Wilkerson v. H &
S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010)
(citing Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P.
the Court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, this liberal
construction does not mean that the Court has a duty to
re-write the pleading. Snow v. DirecTV, Inc., 450
F.3d 1314, 1320 (11th Cir. 2006).
Petitioner Fails to State a Valid Claim for Relief.
federal statute regarding writs of mandamus, 28 U.S.C. §
1361, provides such relief against only federal officers,
employees, or agencies. Moreover, as Petitioner acknowledges,
(doc. no. 1, p. 2), “[m]andamus jurisdiction is
appropriate only where (1) the defendant owes a clear
nondiscretionary duty to the plaintiff and (2) the plaintiff
has exhausted all other avenues of relief.”
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