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Speight v. Meehan

December 8, 2008

KENNETH EUGENE SPEIGHT PETITIONER,
v.
PATRICK L. MEEHAN, UNITED STATES ATTORNEY FOR THE EASTERN DISTRICT OF PENNSYLVANIA, RESPONDENT.



The opinion of the court was delivered by: Jan E. Dubois, J.

ORDER AND MEMORANDUM

ORDER

AND NOW, this 8th day of December, 2008, upon consideration of the Petition for Writ of Mandamus, or in the Alternative, for a Writ of Prohibition filed by pro se petitioner Kenneth Eugene Speight (Document No. 1, filed July 10, 2008), for the reasons set forth in the attached Memorandum, the Petition for Writ of Mandamus, or in the Alternative, for a Writ of Prohibition is DENIED.

MEMORANDUM

I. FACTS AND PROCEDURAL HISTORY

On July 10, 2008, petitioner, Kenneth Eugene Speight, filed a pro se Petition for Writ of Mandamus, or in the Alternative, for a Writ of Prohibition, pursuant to 28 U.S.C. § 1651 in this Court. Petitioner seeks a writ of mandamus or prohibition directed to Patrick L. Meehan, United States Attorney for the Eastern District of Pennsylvania, ordering him to present certain information to a special grand jury as provided for by the Organized Crime Control Act of 1970, 18 U.S.C. § 3332(a).

At the time petitioner filed the instant petition, he was incarcerated in McKean Federal Correctional Institution in Bradford, Pennsylvania. On April 16, 2008, petitioner sent a letter to respondent requesting that respondent present the enclosed information to a grand jury pursuant to 18 U.S.C. § 3332(a). (Pet. 1.) In the letter, petitioner alleged the following facts, which he claimed "evidence[d] offenses against the criminal laws of the United States." (Id. Ex. A at 1.) According to petitioner, in January 2005, Bureau of Prisons ("BOP") employees Hattie Sims, a unit manager, and Amy Foura, a case manager, entered false data into petitioner's custody classification file, the consequence of which was an adverse determination raising his custody level. (Id.) In 2006, petitioner submitted an administrative remedy request-a BP-9-to correct the false data. (Id.) On September 29, 2006, petitioner was notified of the receipt of his BP-9. (Id.) According to petitioner, there was no further communication concerning the BP-9 until October 25, 2006, when petitioner received both the original form and a photocopy bearing the words "I wish to withdraw this admin remedy, due to my issue being resolved by my unit team." (Id. Ex. A at 1--2.) The statement was dated October 2, 2006 and accompanied by petitioner's signature, which petitioner alleges was forged. (Id. Ex. A at 2.) Petitioner filed an appeal with the Northeast Regional Director of the BOP, which was denied on the ground that petitioner's signature was "verified," proving that he had withdrawn his administrative request. (Id.)

In November 2006, petitioner filed a Freedom of Information Act ("FOIA") request with the BOP for all files pertaining to his BP-9. (Id.) According to petitioner, the BOP failed to acknowledge or comply with his FOIA request. (Id.)

On January 12, 2007, petitioner filed a civil action against Sims, Foura, and other BOP employees in the United States District Court for the Middle District of Pennsylvania.

(Complaint, Speight v. Sims, No. 07-64 (M.D. Pa. Jan. 12, 2007).) On March 27, 2008, that court granted defendants' motion for summary judgment on, inter alia, the ground that petitioner failed to exhaust his administrative remedies. Memorandum and Order of March 27, 2008, at 11--14, Speight v. Sims, No. 07-64 (M.D. Pa. Mar. 27, 2008). On June 30, 2008, the Third Circuit affirmed the judgment of the District Court. Speight v. Sims, 238 Fed. Appx. 880, 883 (3d Cir. 2008). Petitioner alleges that during the litigation, defendants relied upon a sworn declaration of Rosalind Bingham, a BOP paralegal specialist, stating that she "verified" the signature on the note withdrawing the BP-9 as belonging to petitioner. (Pet. Ex. A at 2--3.) Petitioner also alleges that Assistant United States Attorney ("AUSA") Jennifer Clark obtained a protective order to "preclude disclosure of any records regarding the BP-9." (Id. Ex. A at 4.)

In his April 16, 2008 letter to respondent, petitioner claims that the conduct of Sims, Foura, AUSA Clark, and Bingham was unlawful and should be presented to a grand jury pursuant to § 3332(a). The letter requested that respondent "notify [petitioner] of [respondent's] intentions regarding this request . . . ." (Id.) According to petitioner, respondent failed to acknowledge both petitioner's original letter of April 16, 2008 and his follow-up letter of June 5, 2008. (Pet. 1--2.) Thereafter, petitioner filed the instant Petition for Writ of Mandamus, or in the Alternative, for a Writ of Prohibition in this Court. (Doc. No. 1, filed July 10, 2008.)

II. STANDARD OF REVIEW

"[T]he 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.*fn1 Under § 1361, "the test for jurisdiction is whether mandamus would be an appropriate means of relief." Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980) (citing Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). Mandamus is considered an "extraordinary remedy." Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989). As a "drastic remedy," it is "seldom issued and its use is discouraged." In re Patenuade, 210 F.3d 135, 140 (3d Cir. 2000) (citations omitted).

To ensure that the writ will only issue in appropriately extraordinary circumstances, a party seeking issuance of such a writ must demonstrate (1) that a public official has a well-defined and mandatory duty to perform a certain act, (2) that the petitioner has a clear and indisputable right to have that act performed, and (3) that no other adequate remedy is available. See Mallard, 490 U.S. at 309; Heckler v. Ringer, 466 U.S. 602, 616 (1984); Jones, 609 F.2d at 781. The duty owed by the government must be "a legal duty which is a specific, plain ministerial act 'devoid of the exercise of judgment or discretion.' An act is ministerial only when its performance is positively commanded and so plainly ...


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