United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
before the court is the report and recommendation, (Doc. 12),
of Magistrate Judge Schwab recommending that this civil
action seeking a writ of mandamus pursuant to 28 U.S.C.
§1361, filed by pro se plaintiff Terrance
Sykes, (Doc. 1), an inmate at FCI-Allenwood, be dismissed
with prejudice for failure to state a claim upon which relief
can be granted. After granting plaintiff's motion to
proceed in forma pauperis, (Doc. 11), Judge Schwab
screened the complaint under 28 U.S.C.
did not file objections to the report and recommendation and,
the time within which to do so has expired. After having
reviewed the record, the court will ADOPT
the report and recommendation. The complaint will be
DISMISSED WITH PREJUDICE.
STANDARD OF REVIEW
no objection is made to a report and recommendation, the
court should, as a matter of good practice, “satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.”
Fed.R.Civ.P. 72(b), advisory committee notes;
see also Univac Dental Co. v. Dentsply Intern., Inc., 702
F.Supp.2d 465, 469 (2010) (citing Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining
judges should give some review to every Report and
Recommendation)). Nevertheless, whether timely objections are
made or not, the district court may accept, not accept or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31. Upon review, the
report and recommendation of Judge Schwab will be adopted in
Judge Schwab explains, plaintiff's complaint seeking a
writ of mandamus to compel officials at the BOP to
immediately release him from confinement, allegedly because
he is being unlawfully imprisoned based on a
“phony” judgment of sentence issued by the U.S.
District Court for the Western District of New York, fails to
state a cognizable claim and should be dismissed. “[A]
.. motion [under 28 U.S.C. §2255] filed in the
sentencing court is the presumptive means for a federal
prisoner to challenge the validity of a conviction or
sentence.” In re McCusker, 697 Fed.Appx. 129,
130 (3d Cir. 2017) (citation omitted). Further, “[i]f
[a defendant] wishes to collaterally challenge his conviction
or sentence by filing a second or successive §2255
motion, he must do so by complying with the gatekeeping
requirements prescribed by 28 U.S.C. §2244 and
§2255(h)”, and “[h]e may not use a mandamus
petition to evade these requirements.” Id.
(citations omitted). Thus, as the report states, if plaintiff
wants to challenge his federal conviction or sentence, as he
appears to be doing in this case, the proper vehicle to do so
is a §2255 motion not a mandamus petition.
Judge Schwab recommends that the plaintiff should not be
given leave to amend his complaint. Before dismissing a
complaint for failure to state a claim upon which relief may
be granted, the court must grant the plaintiff leave to amend
his complaint unless amendment would be inequitable or
futile. See Grayson v. Mayview State Hospital, 293
F.3d 103, 114 (3rd Cir. 2002). Based on the above, the court
will not give plaintiff the opportunity to amend his
complaint since it would be futile for him to do so.
such, the report and recommendation of Judge Schwab will be
ADOPTED IN ITS ENTIRETY, and the
plaintiff's complaint will be DISMISSED WITH
PREJUDICE. A separate order shall issue.
Title 28 U.S.C. §1915A requires a
district court to screen any complaint brought by a prisoner
who seeks relief from a government employee for purposes of
determining whether, inter alia, the complaint fails to
present a viable cause of action. This initial screening is
to be done as soon as practicable and need not await service
of process. 28 U.S.C. §1915A(a).
Under Section 1915A, the court must assess whether a
pro se complaint “fails to state a claim upon which
relief may be granted.” This statutory text mirrors the
language of Rule 12(b) (6) of the Federal Rules of Civil
Procedure, which provides that a complaint should be
dismissed for “failure to state a ...