United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
Margaret B. Seymour Senior United States District Judge.
Jerome Eugene Todd is a federal prisoner who currently is
housed in FCI Estill, South Carolina. Plaintiff proceeding
pro se, brings this action for a writ of mandamus that would
direct Defendant U.S. Marshal, Kelvin Washington, to serve
the named defendants in a separate action filed with this
court (Todd v. Sullivan,
6:17-cv-02696-DCC). In accordance with 28 U.S.C. § 636(b)
and Local Rule 73.02, D.S.C., this matter was referred to the
United States Magistrate Judge Kevin F. McDonald for pretrial
handling. This matter is now before the court on the
Magistrate Judge's Report and Recommendation filed on
March 6, 2018, recommending that the court dismiss the action
without prejudice and without issuance and service of
process, ECF No. 6, to which Plaintiff filed objections on
March 21, 2018, ECF No. 9.
RELEVANT FACTS AND PROCEDURAL HISTORY
November 28, 2017, Plaintiff filed the present action seeking
a writ of mandamus to compel U.S. Marshal Kelvin Washington
to serve the summons and complaint upon the named Defendants
in Case No. 6:17-cv-02696-DCC. ECF No. 1. On February 26,
2018, the Honorable Donald C. Coggins, Jr., dismissed
Plaintiff's complaint in Case No. 6:17-cv-02696-DCC, on
the basis that Plaintiff has failed to prosecute his case and
has failed to comply with an order of this court. On March 9,
2018, Judge Coggins denied Plaintiff's motion for
reconsideration and also denied Plaintiff's motion to
reopen the case on March 13, 2018. See Case no.
6:17-cv-02696-DCC, ECF No. 60. The case is currently on
appeal to the Fourth Circuit.
March 6, 2018, the Magistrate Judge issued a Report and
Recommendation, recommending that the present action be
dismissed without prejudice and without issuance and service
of process. ECF No. 6. The Magistrate Judge determined that
Plaintiff's “request for mandamus relief fails
because the Marshal has no duty to perform in the previous
case 6:17-cv-02696-DCC, as that case has been dismissed by
Judge Coggins.” ECF No. 6 at 3. Therefore, the
Magistrate Judge concluded that “the Marshal has no
duty to serve any documents on the former named
defendants” and the action should be dismissed.
March 21, 2018, Plaintiff filed objections to the Magistrate
Judge's Report and Recommendation. ECF No. 9. Plaintiff
claims he has no other adequate means to attain the relief
requested in his previous case and therefore seeks a court
order for Defendant to serve the requested documents.
Id. at 4. Plaintiff further alleges that he is
entitled to toll the statute of limitations, due to the
extraordinary circumstances of being detained pending the
disposition of his case. Id. Plaintiff also seeks an
opportunity to be heard on his petition for a writ of
mandamus. Id. at 6.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight and the
responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The court reviews de novo only those
portions of a Magistrate Judge's Report and
Recommendation to which specific objections are filed, and
reviews those portions which are not objected to - including
those portions to which only “general and
conclusory” objections have been made - for clear
error. Diamond v. Colonial Life & Acc. Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983); Opriano v.
Johnson, 687 F.2d 44, 77 (4th Cir. 1982). The court 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. § 636(b)(1).
court has thoroughly reviewed the record. After accepting the
allegations in Plaintiff's complaint as true and drawing
all reasonable inferences from those facts in Plaintiff's
favor, the court agrees with the Magistrate Judge's
recommendation that the action be dismissed without prejudice
and without issuance and service of process. The court has
the statutory authority to compel an officer or employee of
the United States to perform a duty under 28 U.S.C. §
1361. However, the statute requires that the duty to perform
must be owed to Plaintiff. See 28 U.S.C. §
1361. The court finds that Defendant does not owe Plaintiff a
duty to serve the requested documents because the case
assigned to Judge Coggins is dismissed.
court ADOPTS the Magistrate Judge's Report and
Recommendation and incorporates it herein by reference. ECF
No. 6. Defendant U.S. Marshal Kelvin Washington is dismissed
without prejudice and without issuance and service of
process. Plaintiff has also filed numerous motions relating
to a criminal proceeding in the District Court for the
Western District of Washington (ECF No. 12, 17, 18, and 20).
With respect to these motions, the court finds as follows:
Plaintiff's motion for amendment of the detention order,
ECF No. 17, and Plaintiff's motion to appeal the
detention order, ECF No. 18, is DENIED. See United States
v. Smith, 200 F.Supp.3d 192 (D.D.C. 2016) (holding that
the District Court Judge who did not issue a detention order
lacked statutory authority to review a detention order issued
by another District Court Judge) (citing 18 U.S.C. §
3145)). Plaintiff's motion for transportation for
revocation proceedings, ECF No. 12, and Plaintiff's
motion for judicial notice of the presentence report, ECF No.
20, are DENIED. Plaintiff is advised to file motions relating
to his criminal proceeding in the District Court for the
Western District of Washington, the district presiding over
his revocation proceeding and detention order.
IS SO ORDERED.