Opinion
CIV-23-464-R
07-24-2023
ERICK GACHUHI WANJIKU, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, et. al., Respondents.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE
Petitioner, appearing pro se, brings this action seeking a writ of mandamus. The United States Attorney filed a Response to the Petition for Writ of Mandamus, in which he requests the Court dismiss this matter based on lack of subject matter and personal jurisdiction, as well as failure to state a claim upon which relief can be granted. Doc. No. 11. Petitioner filed a Reply to the same. Doc. No. 14. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, the undersigned recommends the request for dismissal be granted.
I. Background Information
Petitioner became a legal permanent resident of the United States in 2006. Doc. No. 1 at 1. On August 30, 2019, Petitioner was charged with multiple criminal charges. Id.; see also Oklahoma State Court Network, State v. Wanjiku, District Court of Tulsa County, Case No. CF-2019-4181. On January 5, 2022, following a jury trial, Petitioner was convicted of Domestic Assault by Strangulation. Id. The state court sentenced Petitioner to three years imprisonment. Id. Plaintiff filed an appeal of his conviction with the Oklahoma Court of Criminal Appeals, which denied the same on March 16, 2023. Doc. No. 1 at 1; see also Oklahoma State Court Network, Wanjiku v. State, Oklahoma Court of Criminal Appeals, Case No. F-2022-96.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2019-4181.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2022-96&cmid=132254.
On March 17, 2023, Immigrations and Customs Enforcement (“ICE”) issued a detainer to the Lawton Community Corrections Center (“LCCC”) where Petitioner was incarcerated. Doc. No. 1 at 1; Doc. No. 11-1. The detainer requested LCCC officials notify the Department of Homeland Security (“DHS”) at least 48 hours prior to releasing Petitioner. Doc. No. 11-1 at 1. The detainer indicated that DHS intended to assume custody of Petitioner upon his release from LCCC. Id.
On May 8, 2023, LCCC released Petitioner and DHS took custody of him. Doc. No. 11 at 19. Following said release, DHS lifted and/or removed the March 17, 2023 detainer. Doc. No. 11-1.
On the same date as Plaintiff's LCCC release, Petitioner was transported to an ICE field office where he allegedly refused to cooperate in allowing officials to take his fingerprints. Doc. No. 11 at 19. An altercation ensued between Petitioner and an official and Petitioner was subsequently charged with Assault on a Federal Officer. Id.; see also Criminal Complaint, United States v. Wanjiku, Case No. CR-23-227-R (W.D. Okla. May 9, 2023), Doc. No. 1. Petitioner has since been indicted on that charge and is being detained awaiting trial. Order of Detention Pending Trial, United States v. Wanjiku, Case No. CR-23-227-R (W.D. Okla. May 11, 2023), Doc. No. 16; Indictment, United States v. Wanjiku, Case No. CR-23-227-R (W.D. Okla. June 6, 2023), Doc. No. 17.
By this action, Petitioner requests a writ of mandamus directing Respondents to remove the March 17, 2023 detainer. Doc. No. 1 at 1-2. He contends that he filed a petition for writ of habeas corpus with the state district court on December 3, 2022, which remains pending, and that he intends to also challenge his conviction “through a post-conviction relief and a federal habeas corpus.” Id. at 1. He asserts Respondents should not pursue a detainer until the challenges to his conviction are complete. Doc. No. 1 at 2. The United States Attorney requests dismissal of this action based on, inter alia, lack of subject matter jurisdiction because Respondents have previously lifted the detainer Petitioner challenges herein. Doc. No. 11.
II. Analysis
“[F]ederal courts are courts of limited jurisdiction, the metes and bounds of which are prescribed by Congress.” Kan. by and through Kan. Dep't of Child. and Families v. SourceAmerica, 874 F.3d 1226, 1240 (10th Cir. 2017) (citations omitted). Subject-matter jurisdiction, in particular, refers to “the courts' statutory or constitutional power to adjudicate [a] case.” Id. (quoting Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89 (1998)). When a court's subject-matter jurisdiction over a dispute is raised, the petitioner, as the party invoking federal jurisdiction, bears the burden of establishing jurisdiction exists. Id. (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). If the moving party fails to establish jurisdiction “with the manner and degree of evidence required at . . . [that] stage[ ] of the litigation,” the court must dismiss the case. Id. (quoting Lujan, 504 U.S. at 561; see Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
The Tenth Circuit recently revisited the constitutional requirement that a court must have an actual case or controversy before it enjoys subject matter jurisdiction over a case. Robert v. Austin, __ F.4th __, 2023 WL 4361082, at *1-2 (10th Cir. 2023). “The Constitution gives federal courts the power to adjudicate only genuine Cases and Controversies.” Id. at *1 (quoting Kerr v. Polis, 20 F.4th 686, 692 (10th Cir. 2021)). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings . . . [and] requires a party seeking relief to have suffered, or be threatened with, an actual injury . . . likely to be redressed by a favorable judicial decision by the [] court.” Id. (quoting Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 879 (10th Cir. 2019)).
The United States Attorney contends that the case or controversy before this Court is now moot because ICE previously lifted the March 17, 2023 detainer challenged herein. “As Article III [of the United States Constitution] requires an actual controversy, [courts] lack subject-matter jurisdiction over a case that is moot A case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Id. (quoting Smith v. Becerra, 44 F.4th 1238, 1247 (10th Cir. 2022)). “The crucial question is whether granting a present determination of the issues offered . . . will have some effect in the real world.” Id. “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the [moving party's] particular legal rights.” Id. (citation omitted).
Here, Petitioner challenges the March 17, 2023 detainer issued by ICE to LCCC. Doc. No. 1 at 1. He specifically references a letter he wrote to “Officer Kinnison asking [for] the removal of the detainer” and requested the writ of mandamus from this Court due to the “Respondent's blatant disregard of the petitioner's request.” Id. at 1, 2. In his Reply, Petitioner explains that he wrote that letter in April 2023, further establishing that the detainer Petitioner challenges by this action is that issued in March 2023. Doc. No. 14 at 1.
The Response to the Petition clearly establishes that ICE previously lifted the March 17, 2023 detainer. See, supra. Moreover, in his Reply, Petitioner does not dispute the detainer has been lifted but instead, complains that ICE issued a second detainer on May 9, 2023. Doc. No. 14 at 2. The second detainer arises from his federal criminal charges. However, the only detainer Petitioner challenged in the Petition before this Court was the March 17, 2023 detainer. It was Respondent's disregard of his previous request to Officer Kinnison as well as the ongoing nature of his challenges to his state court conviction that formed the basis of his mandamus request. As Respondents have already lifted the challenged detainer, there is not a live controversy and this Court is unable to issue a ruling that would affect Petitioner's legal rights. Robert, __ F.4th __, 2023 WL 4361082, at *2. Thus, the Petition for Writ of Mandamus is moot and this Court does not have subject matter jurisdiction over this matter.
Finally, in his Reply, Petitioner appears to challenge the May 9, 2023 detainer that ICE issued following his federal criminal charges. Doc. No. 14 at 2. However, the Court will not consider new legal claims raised in response to a request for dismissal. See, cf., Windsor v. Patton, 623 Fed.Appx. 943, 947 (10th Cir. 2015) (“[G]rounds for relief not asserted in a petitioner's habeas petition are waived.” (citing Rule 2(c)(1), Rules Governing Section 2254 Cases in the United States District Courts (“The petition must . . . specify all the grounds for relief available to the petitioner.”))); see also, cf., Cisneros v. Gomez, No. CIV-21-825-PRW, 2022 WL 19073972, at *10 n.7 (W.D. Okla. Oct. 19, 2022) (“The Court cannot rely on new arguments or facts raised in a response in ruling on a motion to dismiss.” (citing McDonald v. Citibank N.A., No. 21-cv-00427-PAB-NRN, 2021 WL 5736437, at *9 (D. Colo. Dec. 2, 2021) (“A plaintiff [ ] may not amend his complaint in a response to a defendant's motion to dismiss.”); Warad W., LLC v. Sorin CRM USA Inc., 119 F.Supp.3d 1294, 1305 (D. Colo. 2015) (“[W]hen deciding a Rule 12(b)(6) motion, this Court may not consider new allegations contained in a plaintiff's response.”); In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (“The plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss.”)). Thus, the Court only considers legal claims asserted in the controlling pleading, which did not contain a challenge to the May 9, 2023 detainer.
In light of this recommendation, it is not necessary for the Court to address the remaining bases underlying the request for dismissal.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Court grant the United States Attorneys' request for dismissal of the Petition for Writ of Mandamus based on a lack of subject matter jurisdiction. Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by August 14th , 2023, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion should be deemed denied.