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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARIAN ANTHONY LUCAS, )

Petitioner, ) C.A. No. 09-187 Erie

) District Judge Maurice B. Cohill

v. ) Magistrate Judge Susan Paradise Baxter

)

CHRISTOPHER J. SINNOTT, et al., )

Respondents. )

AMENDED REPORT AND RECOMMENDATION

I. RECOMMENDATION

On January 25, 2010, the undersigned issued a Report and Recommendation ("R&R")

[Document No. 12] in which it was recommended that the petition for writ of habeas corpus

[Document No. 1] be dismissed for failing to state a claim cognizable under 28 U.S.C. § 2254.

Petitioner Darian Anthony Lucas has filed Objections to the R&R in which he contends that the

instant action actually is one in mandamus under 28 U.S.C. § 1361. This amended R&R is

issued to address Lucas's recharacterization of his petition for writ of habeas corpus as a petition

for writ of mandamus and to recommend that it, too, be denied. 

II. REPORT

Lucas is a state prisoner and is presently incarcerated at the State Correctional Institution

in Dallas, Pennsylvania. In or around February 1999, he filed an action in this Court under 42

U.S.C. § 1983 claiming various violations of his civil rights. Lucas v. Fetzner, et al., Civil

Docket No. 1:99-cv-00017 (W.D. Pa.). Ultimately, in June 2002, summary judgment was

granted in favor of the defendants and the case was closed. Lucas filed a notice of appeal in the

United States Court of Appeals for the Third Circuit. Lucas v. Fetzner, et al., Appellate Docket

No. 02-2719 (June 21, 2002). On January 6, 2003, the Third Circuit Court dismissed the appeal

under 28 U.S.C. § 1915(e)(2)(B). It denied Lucas's subsequent motions to amend the judgment,

for reconsideration, and to recall the mandate. By order dated April 1, 2004, the Third Circuit

Court denied a second motion filed by Lucas to amend the judgment and notified him that no

further post-decision submissions would be accepted for filing. 

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 28 U.S.C. § 1361 provides that "[t]he district courts shall have original jurisdiction of any action in the 1

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). An individual seeking mandamus under Section 1361 must show that he has

a clear right to the relief sought, that the respondent has a clear duty to perform the act requested, and that no adequate

remedy is available. See, e.g., Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296

(1989). None of those factors is present here. 

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On June 19, 2009, Lucas filed in the closed civil rights case at Civil Docket No.

1:99-cv-00017 a document entitled "Petition for Review." See Docket No. 112 in Lucas, Civil

Docket No. 1:99-cv-00017. The Honorable Maurice B. Cohill, Jr., denied the Petition for

Review on June 22, 2009. Id., Docket No. 113. Next, on July 27, 2009, Lucas commenced this

action by filing a form petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and

paying the $5.00 filing fee applicable only to actions in habeas corpus. He raises complaints

about the manner in which his civil rights action was disposed in this Court and on appeal

before the Third Circuit Court. [See Document No. 1 at 7-9]. The undersigned issued an R&R

[Document No. 12] recommending that the petition be dismissed with prejudiced for failing to

state a claim cognizable in habeas under 28 U.S.C. § 2254.

Lucas has filed Objections [Document No. 15] in which he contends that the instant

action actually is one in mandamus under 28 U.S.C. § 1361. This is not a mandamus action, 1

regardless of what Lucas calls it. The relief that he seeks in this action is reconsideration of his

civil rights action at Civil Docket No. 1:99-cv-00017. Lucas is seeking this relief because he

has filed so many frivolous civil actions that he now is barred from proceeding in forma

pauperis under the Prison Litigation Reform Act (the "PLRA") at 28 U.S.C. § 1915(g). See

Third Circuit Court Order dated 10/23/2003 in Lucas v. Tennis, et al., Appellate Docket No. 03-

1190 (denying Lucas in forma pauperis status because he has had a least three prior civil actions

dismissed as frivolous or for failure to state a claim). In an effort to avoid the provisions of the

PLRA, he has filed corresponding actions here and in the United States District Court for the

Middle District of Pennsylvania in which he is, by way of purported petitions for habeas or for

mandamus, requesting that his various civil rights actions be reopened and declared "nonfrivolous." See Lucas v. Maravich, et al., 2:09-cv-01052 (W.D. Pa.); Lucas v. Maravich, et al.,

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2:09-cv-01167 (W.D. Pa.); Lucas v. Maravich, et al., 2:09-cv-01327 (W.D. Pa.); Lucas v.

Forney, et al., 4:09-cv-01619 (M.D. Pa.); Lucas v. Cawley, et al., 4:09-cv-01850 (M.D. Pa.). 

28 U.S.C. § 1361 does not confer upon a district court jurisdiction to reopen and

reconsider a finally litigated action, nor does it provide a district court with any authority to

compel the court of appeals to reconsider orders and decisions made by it. The purported 

"petition for mandamus" that Lucas has filed at this civil action number should be construed as a

motion for relief from a judgment or order pursuant to Federal Rule of Civil Procedure 60(b)

and it should be denied. 

III. CONCLUSION

On the basis of the foregoing, it recommended that Lucas's "petition for mandamus"

should be construed as a motion for relief from a judgment or order pursuant Rule 60(b) and be

denied. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.D.2 of the Local Civil Rules, Lucas is allowed to file objections in accordance with the

schedule established in the docket entry reflecting the filing of this Report and

Recommendation. Failure to timely file objections may constitute a waiver of any appellate

rights. Failure to file timely objections may constitute a waiver of any appellate rights. See

Nara v. Frank, 488 F.3d 187 (3d Cir. 2007). 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

UNITED STATES MAGISTRATE JUDGE

Dated: February 5 , 2010

 

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