Drescher v. Ballard, No. 2:16-cv-09517 (S.D. W.Va.): Proposed Findings and Recommendation (17 May 2017, Doc. 5) and Order dismissing the petition (16 June 2017, Doc. 7)

IN THE UNITED STATES DISTRICT COURT
             FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA


                                     CHARLESTON



THOMAS A. DRESCHER,


              Petitioner,

Vv.                                                     Case No. 2:16-cv-09517

DAVID BALLARD, Warden,
Mount Olive Correctional Complex,

              Respondent.



               PROPOSED FINDINGS AND RECOMMENDATION


       On October 6, 2016, the petitioner, who is incarcerated at the Mount Olive

Correctional Complex (“MOCC”), filed an “Appeal of Petitioner Thomas A. Drescher,”

which was docketed as a Petition for a Writ of Mandamus (ECF No. 1). This matter is

assigned to the Honorable Joseph R. Goodwin, United States District Judge, and it is

referred to the undersigned United States Magistrate Judge for submission of proposed

findings and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

                                    THE PETITION


      The petitioner’s Petition, which is styled as an “Appeal” from a final judgment of

the Supreme Court of Appeals of West Virginia (“the SCAWV”), seeks an Order reversing

a decision of the SCAWV and requiring the respondent to permanently house the

petitioner in special management at the Northern Correctional Facility (““NCF”). A review

of the attachments to the petitioner’s Petition indicates that Petitioner is a West Virginia

Division of Corrections (“WVDOC”) inmate servinga life without mercy sentence for First


Degree Murder.    The petitioner has been in WVDOC custody since 1987.         He also has

detainers filed against him for a California murder conviction and an unspecified federal

conviction. The petitioner was housed at MOCC from 1995 to November 20, 2015, when

he was transferred to special management at NCF, after he was attacked by another

inmate       EE However, on December 4, 2015, the petitioner was transferred back

to MOCC and placed in segregated confinement on the Quilliams I segregation unit.

         On December 11, 2015, the petitioner filed a Petition for a Writ of Mandamus in

the SCAWV, seeking his return to NCF, and asserting that his life is in danger at MOCC,

due to his role in obtaining changes to the WVDOC religious diet policy, Policy Directive

511.00, which became effective in December of 2013 (two years earlier). The respondent,

by counsel, filed a response to the petitioner’s mandamus petition filed in the SCAWV,

indicating that there are underlying security concerns that prohibit the petitioner’s

continued housing at NCF, and that MOCC has the ability to house the petitioner safely

in protective custody. The respondent further asserted that a writ of mandamus is not

the proper avenue for such relief. (ECF No. 1, Attach. 5 [Ex. No. 4]).

         On September 21, 2016, the SCAWV refused the petitioner’s Petition for a Writ of

Mandamus. (ECF No. 1, Attach. 3 [Ex. No. 2]). It is from that decision that the petitioner

attempts to “appeal” to this federal court. The petitioner’s Petition asserts that he has “a

liberty interest in avoiding Q’s [the segregation units at MOCC] due to the extreme

conditions there and by consequence, [is] unable to properly engage in his religious

practice or participate in other remedial or rehabilitative programs, since none are offered


to inmates housed in the Q’s.” (ECF No. 1 at 5). The petitioner further asserts that he has

been denied due process because he was not afforded a hearing prior to his transfer. (Id.)

The petitioner also claims that his transfer has resulted in a substantial burden on his

religious practice, and that a less restrictive means is available by placing him in special


                                             2

management at NCF, and that he has been treated differently than other similarly situated

inmates, particularly other Hare Krishnas, who are housed at NCF and are able to


regularly participate in religious programs conducted with outside Hare Krishna clergy.

(Id. at 5-7). Finally, the petitioner claims that his return to MOCC has “forced him to live

in the dangerous, immediate proximity” of his enemies, placing his life at risk. (Id. at 6).


Thus, he contends that the SCAWV “erred when it failed to render an opinion or give any

reason for the denial of Petitioner’s Writ of Mandamus” and he requests that “his Appeal

be granted in full” and that he be returned to custody at NCF. (/d. at 5, 8).

                               STANDARD OF REVIEW


       The court is obliged to construe pro se pleadings liberally. Haines v. Kerner, 404

U.S. 519, 521 (1972).   Nevertheless, as the party asserting jurisdiction, the burden of

proving subject matter jurisdiction lies with the petitioner. McNutt v. General Motors

Acceptance Corp., 298 U.S. 178, 189 (1936).

       A district court must dismiss a claim if, at any time, it appears that the court lacks

jurisdiction over the subject matter of the claim.    Fed. R. Civ. P. 12(h)(3); Duffield v.

Memorial Hosp. Ass’n, 361 F. Supp. 398 (S.D. W. Va. 1973), affd sub. nom. Duffield v.

Charleston Area Medical Ctr., 503 F.2d 512 (4th Cir. 1974); see also Bolin v. Chavez, 210

F.3d 389 (10th Cir. 2000) (permitting sua sponte dismissal for lack of subject matter

jurisdiction under Rule 12(h)(3) of the Federal Rules of Civil Procedure).

                                       ANALYSIS


       A.     The Rooker-Feldman Doctrine prohibits this court’s review of
              the plaintiffs claims.

       The Supreme Court made clear in D.C. Ct. of Appeals v. Feldman, 460 U.S. 462

(1983) and Rooker v. Fid. Trust Co., 263 U.S. 413 (1923), that “federal courts are divested

of jurisdiction ‘where entertaining the federal claim should be the equivalent of an

appellate review of the state court order.”         Friedman’s Inc. v. Dunlap, 290 F.3d 191, 196-
                                              999




98 (4th Cir. 2002) (quoting Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th

Cir. 1997)); Plyler v. Moore, 129 F.3d 728, 733 (4th Cir. 1997) (Rooker-Feldman applies


when the federal action “essentially amounts to nothing more than an attempt to seek

review of [the state court’s] decision by a lower federal court”).            More recently, the

Supreme Court reiterated that the Rooker-Feldman doctrine applies to “cases brought by

state-court losers complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284 (2005).

       Accordingly, the undersigned proposes that the presiding District Judge FIND

that the plaintiff is essentially challenging a decision made by the SCAWV and that this

court’s review of that decision amounts to an appeal therefrom, which is barred by the

Rooker-Feldman doctrine. Accordingly, it is respectfully RECOMMENDED that the

presiding District   Judge dismiss the plaintiffs petition for lack of jurisdiction under the

Rooker-Feldman doctrine.

       B.     This court cannot grant mandamus relief against state officials.

       The present petition essentially seeks mandamus relief directed to the respondent,

to transfer and permanently house the petitioner at NCF. Title 28, United States Code,


Section 1361, provides as follows:

       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. [Emphasis added.]

Awrit of mandamus “will issue only where the duty to be performed is ministerial and the

obligation to act peremptory and plainly defined. The law must not only authorize the

demanded action, but require it; the duty must be clear and indisputable.” Central South

Carolina Chapter, Soc. of Professional Journalists, Sigma Delta Chi v. United States

District Court for the District of South Carolina, 551 F.2d 559, 562 (4th Cir. 1977).

       To the extent that the petitioner could even identify any clear and indisputable duty

owed to him by the respondent, a federal writ of mandamus will not lie to compel a state

officer to perform a duty owed to a petitioner. Accordingly, the undersigned proposes

that the presiding District Judge FIND that there is no jurisdiction for this United States

District Court to issue a writ of mandamus directed to WVDOC employees.

       For the foregoing reasons, it is respectfully RECOMMENDED that the presiding

District   Judge DISMISS Petitioner’s Petition (ECF No. 1) for lack of subject matter

jurisdiction.

       The petitioner is notified that this Proposed Findings and Recommendation is

hereby FILED, and a copy will be submitted to the Honorable Joseph R. Goodwin, United

States District   Judge. Pursuant to the provisions of Title 28, United States Code, Section

636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, the petitioner

shall have fourteen days (filing of objections) and three days (mailing) from the date of

filing this Proposed Findings and Recommendation within which to file with the Clerk of

this Court, specific written objections, identifying the portions of the Proposed Findings


and Recommendation to which objection is made, and the basis of such objection.

Extension of this time period may be granted by the presiding District Judge for good


cause shown.

       Failure to file written objections as set forth above shall constitute a waiver of de

novo review by the District Court and a waiver of appellate review by the Circuit Court of

Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.

140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce,

727 F.2d 91 (4th Cir. 1984).     Copies of such objections shall be provided to Judge


Goodwin.

       The Clerk is directed to file this Proposed Findings and Recommendation and to

mail a copy of the same to the petitioner.




May 17, 2017                                 L
                                                       Dwane L. Tinsley
                                                 ~..   United States Magistrate Judge

                 IN THE UNITED STATES DISTRICT COURT
            FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA


                              CHARLESTON DIVISION



THOMAS A. DRESCHER


                            Petitioner,


Vv.                                                CIVIL ACTION NO.               2:16-cv-09517

DAVID BALLARD,


                            Respondent.




                                           ORDER

      Pending before the court is the petitioner’s “Appeal of Petitioner Thomas A.


Drescher,” which has been docketed as a Petition for a Writ of Mandamus [ECF No.

1]. United States Magistrate Dwane L. Tinsley issued a Proposed Findings and

Recommendation    [ECF      No.   5]    (“PF&R”)       on   May    17,    2017.    Judge   Tinsley

recommended    that   the   court      dismiss   the    Petition    for   lack    of jurisdiction.


Subsequently, the petitioner filed Objections [ECF No. 6] to the PF&R, which the

court will now address. For the reasons discussed herein, the court ADOPTS the


PF&R and ORDERS that the Petition for a Writ of Mandamus [ECF No. 1] be

DISMISSED and STRICKEN from the docket of this court.


      Having reviewed the petitioner’s objections de novo, the court FINDS that all


are without merit. The court FINDS that it lacks jurisdiction to issue a writ of


mandamus directed to the WVDOC employees. Moreover, the court FINDS that the

petition challenges a decision made by the West Virginia Supreme Court of Appeals


and that this court’s review of that decision amounts to an appeal therefrom, which


is barred by the Rooker-Feldman doctrine.


      Therefore, the court ADOPTS and INCORPORATES herein the PF&R in full


and ORDERS that the case is DISMISSED for lack of jurisdiction and STRICKEN


from the docket of this court.


      The court DIRECTS the Clerk to send a copy of this Order to counsel of record


and any unrepresented party.


                                      ENTER:       June 16, 2017




                                             J        ff      a



                                     JOSEPH RX. GOODWIN
                                     UNITED STATES DISTRICT JUDGE