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Tyler v. Litwer

United States District Court, D. South Carolina, Charleston Division

October 3, 2019

Linda Ann Tyler, # 248190, Petitioner,
v.
Diantha Litwer, et al., Respondents.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

         Linda Ann Tyler, a state prisoner proceeding pro se, has filed a petition for mandamus. (Dkt. No. 1.) Tyler wants the Court to produce receipts of installment payments the Court has received from her prison account in order to pay the filing fees on previous cases she has filed. Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review the motion and submit a recommendation to the District Judge. For the following reasons, the undersigned recommends summarily dismissing this case, with prejudice and without service of process.

         BACKGROUND

         Tyler is a prisoner who filed several civil actions in this Court over the past few years. The Court allowed her to proceed in forma pauperis in those cases. Because she was a prisoner when she filed those cases, her filing fees have been incrementally debited from her prison account over the years. Tyler contends she has fully paid all those fees, and yet her prison is continuing to debit her account. Tyler wants written records showing what payments she has made on her fees for each case and how much (if anything) she owes.

         PROCEDURAL HISTORY

         Tyler filed her petition on August 5. (Dkt. No. 1-1 at 2.) On August 22, the undersigned issued an order notifying Tyler that she had neither paid the filing fee for her petition nor sought to proceed in forma pauperis. (Dkt. No. 3.) The undersigned gave Tyler twenty-one days (plus three days for mailing time) to either pay the fee or apply to proceed in forma pauperis. (Id. at 2.) The undersigned warned Tyler that if she did not timely do either of those things, her case would be dismissed under Federal Rule of Civil Procedure 41 for failure to prosecute and failure to comply with a court order. (Id.)

         On September 10, Tyler sent the Court a letter. (Dkt. No. 6.) In her letter, she said she is not trying to pursue a lawsuit; rather, she wants the Court to provide her financial records relating to her filing fee debts so that she can determined if the prison's continued debiting of her account is proper. (Id. at 1-2.)

         Tyler's deadline to pay the fee or apply to proceed in forma pauperis has expired.

         DISCUSSION

         I. Rule 41

         A case may be dismissed due to the plaintiff's failure to prosecute it or comply with a court order. Fed.R.Civ.P. 41(b). The undersigned ordered Tyler to pay the $5.00 filing fee or apply to proceed in forma pauperis by September 16. As Tyler has declined to take either action, her case should be dismissed for failure to prosecute and failure to comply with the August 22 order.

         II. Failure to State a Claim

         Alternatively, the petition may be dismissed for failure to state a claim. “Mandamus is a drastic remedy to be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). Mandamus relief is only available when there are no other means by which the relief sought could be granted. In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).

         Tyler admits she is not actually seeking a writ of mandamus against anyone. Rather, she wants this Court to provide her copies of payment records. She did not need a to seek a writ of a mandamus for that. Rather, she could have just written to the Clerk of Court's finance department, which is located at the Matthew J. Perry, Jr. Courthouse, 901 Richland Street, Columbia, South Carolina 29201.[1] ...


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