United States District Court, D. South Carolina, Greenville Division
Bryan Harwell, United States District Judge.
matter is before the Court for consideration of
Petitioner's objections to the Report and Recommendation
(“R & R”) of United States Magistrate Judge
Kevin F. McDonald. See ECF Nos. 8 & 11. The
Magistrate Judge recommends summarily dismissing this action
without prejudice and without issuance and service of
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
commenced this action by filing a document entitled
“Complaint and for a Writ of Mandamus.”
See ECF No. 1. The Magistrate Judge recommends
summarily dismissing this action because Petitioner has filed
his request for mandamus relief in the wrong court. R & R
at p. 3. Petitioner lodges several objections to the R &
R. See ECF No. 11.
Petitioner objects to the Magistrate Judge's finding that
he can seek mandamus relief only from the Third Circuit Court
of Appeals, arguing he is seeking mandamus relief under 28
U.S.C. § 1361, not 28 U.S.C. § 1651. Section 1361
provides, “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.” 28 U.S.C. § 1361. “The propriety
of entertaining a petition for writ of mandamus in the
federal system is, of course, well defined. It may be invoked
only where three elements co-exist: (1) the petitioner has
shown a clear right to the relief sought; (2) the respondent
has a clear duty to do the particular act requested by the
petitioner; and (3) no other adequate remedy is
available.” In re First Fed. Sav. & Loan
Ass'n of Durham, 860 F.2d 135, 138 (4th Cir. 1988)
(discussing § 1361). Here, the Court finds Petitioner
has not satisfied any of the criteria necessary for §
1361 mandamus relief. Moreover, to the extent Petitioner is
seeking mandamus relief against another U.S. District Judge
(from the Western District of Pennyslvania), this Court
cannot grant such relief. See Mullis v. U.S. Bankr. Court
for Dist. of Nevada, 828 F.2d 1385, 1393 (9th Cir. 1987)
(“A district court lacks authority to issue a writ of
mandamus to another district court.”); see,
e.g., Grimes v. Joyner, No. CV
8:17-849-JFA-JDA, 2017 WL 2562337, at *3 (D.S.C. May 8,
2017), adopted by, 2017 WL 2562057 (D.S.C. June 12,
2017) (“A writ of mandamus request is inappropriate in
this case because this Court does not have authority to order
the United States District Court for the Southern District of
Florida to take any action.”).
Petitioner asserts his “Complaint had other plaus[i]ble
claims for relief that did not sound in Mandamus” and
that were not addressed by the Magistrate Judge. The Court
notes Petitioner is a prolific litigant in federal district
and appellate courts throughout the county. See generally
Frederick Banks v. Cocas, 2017 WL 4020376, at *2 (N.D.
Ohio Sept. 13, 2017) (noting “Banks is a
well-established, multi-district, frequent filer” and
compiling his hundreds of cases). Petitioner's
allegationsin this case mirror those in other recently
filed and dismissed cases. Petitioner's “claims here,
like his claims in his countless other suits filed, are
either fantastical and/or delusional; procedurally flawed;
substantively meritless; previously adjudicated, or all
four.” Banks v. Langford, 2017 WL 3449056, at
*1 (E.D. N.C. Mar. 15, 2017), appeal dismissed, 692
F. App'x 144 (4th Cir. 2017). Thus, the Court dismisses
Petitioner's Complaint as frivolous pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(I) and 1915A(b)(1).
Petitioner seeks leave to amend his Complaint, but he has not
specified what amendments he would make; and the Court cannot
identify how he could cure the defects in his frivolous
pleadings. Thus, the Court will deny his request to amend as
futile. See Mayfield v. Nat'l Ass'n for Stock Car
Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012)
(stating a court should deny a request to amend if amendment
would be futile); see, e.g., McSwain v.
Jobs, 2014 WL 12672619, at *1 (M.D. N.C. Jan. 6, 2014)
(“[G]iven the preposterous and frivolous nature of [the
plaintiff's] complaint, it would be a waste of limited
judicial resources to give him an opportunity to
foregoing reasons, the Court overrules Petitioner's
objections, adopts and incorporates by reference the R &
R [ECF No. 8], and DISMISSES this action
without prejudice and without issuance and service of