United States District Court, D. Maryland
L. Hollander United States District Judge
4, 2017, the court received a “Petition to Habeas
Corpus in the United States District Court in Maryland
State” from Mich. Aurel,  a state inmate confined at the
North Branch Correctional Institution (“NBCI”).
ECF 1. Aurel appears to claim that he is being discriminated
against by NBCI officers and medical personnel due to his
national origin, race, and religion.
raises a veritable laundry list of conclusory claims,
alleging that he has been subject to past incidents of
corporal punishment, sexual abuse, and harassment by NBCI
staff. ECF 1 at 3. Further, he claims deliberate indifference
by Wexford Health Sources, Inc., at both NBCI and Jessup
Correctional Institution, where he was previously held.
Id. at 4. In particular, Aurel claims denial of
access to medication for his symptoms related to abdominal
pain and chronic constipation; bloody stool; colon, thyroid,
and prostate cancer; an ulcer; pain in his ear; a tongue
infection; pain in his bladder, head, and lower back, as well
as numbness to his right hip; dizziness; and he has been
denied access to all rehabilitative programs since November
of 2014. He seeks $100, 000.00 in damages and court action to
compel state authorities to transfer him to Romania, his
country of citizenship. ECF 1 at 2-4, 6-7, 10. The cause of
action has been construed as a 42 U.S.C. § 1983 prisoner
civil rights action for injunctive relief and damages.
is litigious. This case represents the thirty-fourth action
he has filed in this court over the past five years, most of
which have been assigned to me. In three of those cases Aurel was
granted leave to proceed in forma pauperis pursuant to the
provisions of 28 U.S.C. § 1915(a). Those cases were
dismissed as frivolous or for failure to state a claim. He
was notified that the dismissals constituted
“strikes” under § 1915(e),  and that a
prisoner is not allowed to bring a civil action under the
provisions of 28 U.S.C. § 1915 if he "has, on 3 or
more occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury." 28 U.S.C. §
Aurel's cases are subject to review under 28 U.S.C.
§ 1915(g), he may not proceed in this action unless he
(1) submits the $400.00 civil filing fee or (2) moves to
proceed in forma pauperis and provides particularized factual
allegations establishing that he is subject to imminent
danger of serious physical injury.
extent that Aurel's current allegations may be construed
as raising an imminent danger exception, I observe that in
Aurel v. Wexford Health Sources, Inc., et al., Civil
Action No. ELH-16-1293 (D. Md.), Aurel raised similar claims
regarding the denial of medical care in regard to
“catastrophic injuries” sustained to his head,
back, and hip from a fall from his bunk in March 2016. And,
he raised identical claims regarding his abdominal issues,
constipation, positive occult blood samples and alleged
cancers in three cases: Aurel v. Wexford, Civil
Action No. ELH-13-3721 (D. Md.); Aurel v. Warden, et
al., Civil Action No. 15-1127 (D. Md.); and Aurel v.
Wexford Health Sources, Inc., et al., Civil Action No.
ELH-15-1797 (D. Md.). In all cases Aurel's medical issues
were fully briefed throughout 2014 to 2016. The court
examined his health care claims and granted judgment in favor
of the medical defendants. Further, the court notes that
Aurel recently filed a complaint, raising a multitude of
claims regarding his medical care and treatment. Notably,
Aurel's allegations with regard to his throat, neck, ear,
thyroid, and tongue pain are proceeding for answer and review
in Aurel v. Wexford Health Sources, Inc., et
al., Civil Action No. ELH-17-1201 (D. Md.), under the
§ 1915(g) exception.
court finds that Aurel has otherwise failed to demonstrate
that he is in imminent danger of physical harm from NBCI
personnel. Courts have held that the “imminent
danger” exception to § 1915(g)'s
“three strikes” rule must be construed narrowly
and applied only “for genuine emergencies, ”
where “time is pressing” and “a threat ...
is real and proximate” to the alleged official
misconduct. Lewis v. Sullivan, 279 F.3d 526, 531
(7th Cir. 2002). “The exception focuses on the risk
that the conduct complained of threatens continuing or future
injury, not on whether the inmate deserves a remedy for past
misconduct.” Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003). The bar for establishing imminent
danger, although high, is not insurmountable. In
Lewis, 270 F.3d at 531, the court said:
If limited to situations in which, say, a beating is ongoing,
no prisoner will find solace; once the beating starts, it is
too late to avoid the physical injury; and once the beating
is over the prisoner is no longer in “imminent
danger” .... Reading the imminent-danger language this
way would make it chimerical, a cruel joke on prisoners.
allegations concern past incidents and conduct. None is of an
emergency nature, and there is no suggestion that the
incidents alleged are part of a pattern of ongoing conduct.
None of his bald-faced claims suggest that he presently faces
immediate danger of serious physical harm sufficient to
excuse him from the “three strikes” bar under 28
U.S.C. § 1915(g).
addition, to the extent that Aurel seeks to invoke this
court's mandamus jurisdiction under 28 U.S.C. § 1361
to compel his transfer or removal to Romania, the court is
without authority to do so. This remedy is only used in
extraordinary circumstances. See Kerr v. United States
Dist. Court, 426 U.S. 394, 402 (1976); In re Beard, 811
F.2d 818, 826 (4th Cir. 1987).
28 U.S.C. § 1361 confers original jurisdiction on the
United States District Courts “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.” Thus, a federal court may only issue a
writ of mandamus against an employee or official of the
United States and, even then, may only command that employee
or official “to perform a mandatory or ministerial
duty, rather than one that is purely discretionary.”
Ocean Breeze Festival Park v. Reich, 853 F.Supp.
906, 915 (E.D. Va. 1994), affirmed by Virginia
Beach Policeman's Benevolent Association v. Reich,
96 F.3d 1440 (4th Cir. 1996). A federal court does not have
jurisdiction over state entities or employees in an action
for writ of mandamus. See Gurley v. Superior
Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir.
1969); see also AT & T Wireless PCS v.
Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307,
312 n. 3 (4th Cir. 1999).
has no right to be repatriated before completion of his state
sentence. See Wright v. U.S. Dep't
of Homeland Sec., No. DKC-09-2840, 2009 WL 3711366, at
*2 (D. Md. Nov. 2, 2009) (“Petitioner's continued
confinement until the completion of his term of incarceration
does not violate the Constitution or laws of the United
States, and petitioner has no private right of action to
compel his immediate removal or immediate consideration for
removal prior to the completion of his term of
court has no authority to provide Aurel with the relief he
separate Order follows, dismissing this Complaint, ...