Renoir v. Governor of Virginia

FILED
DEC 1 0 2010
UNITED STATES DISTRICT COURT C|erk, U.S. District & Bankruptcy
FGR THE DISTRICT OF COLUMBIA Courts for the District of Co|umbia
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PIERRE A. RENOIR, ) f `` ' >‘~
) 10 £U91
Petitioner, )
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v. ) Civil Acti0n No. 10- (UNA)
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GOVERNOR OF VIRGINIA, et al. )
)
)
Respondents. )
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MEMORANDUM OPINION
I. Intr0duction.
Pierre A. Renoir is currently incarcerated at the Wallens Ridge State Prison in Big
Stone Gap, Virginia, serving "multiple life sentences imposed upon him by the Circuit Court for
the City of Roanoke pursuant to convictions for anal sodomy, rape, aggravated sexual battery,
indecent liberties, sodomy by fellatio, and object sexual penetration" of his daughter. Renoir v.
Virginia, No. 7:99-CV-00580-JLK, 2001 WL 34801301, at *l (W.D. Va. July 3l, 2001). The
Court has received a petition for a writ of mandamus from Mr. Renoir to compel
Respondents_the Governor of Virginia and the President of the United States-to order U.S.
Marshals to search his prison cell and remove his cell mate’s shivs; place Mr. Renoir into
"immediate Federal protection"; recover from the assistant warden a letter allegedly sent to Mr.
Renoir from the French Embassy; appoint counsel for Mr. Renoir; and prevent prison officials
from denying access to Mr. Renoir by such counsel. Along with his petition, l\/Ir. Renoir
provided the clerk with an application to proceed in forma pauperis; a motion to amend the
petition to include a plea for protection from an alleged threat to his life and for recognition of
his alleged diplomatic immunity; a motion to appoint counsel; a motion to provide the Embassies
of the Republic of France and the State of Japan with notice of this case; a motion for an order
directing U.S. Marshals to take various actions to remove the alleged threat to Mr. Renoir’s life
pending adjudication of the petition, which the Court construes as a motion for a temporary
inj unction; a motion to prevent the publication, by state or federal authorities, of any photograph,
image, or likeness of Mr. Renoir, which the Court construes as a motion for a permanent
injunction; and a motion for a status update.
The Court will grant the application to proceed in forma pauperis, because
although Mr. Renoir has accumulated "three strikes" and may generally no longer proceed in
forma pauperis, he qualifies for the immediate-danger exception to this rule. The Court will deny
the motion to amend as unripe, because Mr. Renoir may amend his petition once as a matter of
course; the Court will simply consider the petition as amended. The Court will deny the motion
to notify the French and Japanese Embassies, because Mr. Renoir has not articulated any reason
to do so. The Court will deny the motion for appointment of counsel, because Mr. Renoir has
not demonstrated that exceptional circumstances exist such that the denial of counsel would
result in fundamental unfaimess.
The petition itself must be dismissed. The common-law writ of mandamus has
been abolished and the Court has statutory authority to grant mandamus-like relief to compel
only federal officers and employees to perform only non-discretionary, ministerial duties owed to
a petitioner. The petition will be dismissed as to the Govemor of Virginia, because the Court’s
statutory authority to grant mandamus-like relief does not extend to state offlcers. The petition
will also be dismissed as to the President of the United States, because l\/Ir. Renoir fails to state a
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claim upon which relief may be granted, and if a petitioner is proceeding in forma pauperis, the
petition must therefore be dismissed as required by the in forma pauperis statute. The portion of
the amended petition requesting that the Court recognize Mr. Renoir’s diplomatic immunity will
be construed as a petition for habeas corpus, which will be dismissed for lack of jurisdiction.
As to the remaining motions: l) the motion for an order that the U.S. Marshal take
various actions to remove the alleged threat to Mr. Renoir’s life pending adjudication of Mr.
Renoir’s petition will be denied as moot, because the petition will have been adjudicated and will
no longer be pending; 2) the motion for a permanent injunction against publication of images of
Mr. Renoir will be denied, because a permanent injunction is appropriate only after a plaintiff has
first prevailed on a claim, and Mr. Renoir has not prevailed on his claim; and 3) the motion for a
status update will be denied as moot, because this opinion will inform Mr. Renoir of the status of
his case.
II. The Application to Proceed in Forma Pauperis Will Be Granted.
Under the Prison Litigation Reforrn Act, a prisoner may not bring a civil action "if
the prisoner has, on 3 or more prior 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. § l9l5(g). Mr. Renoir
has brought such actions or appeals on three or more prior occasions. Renoir v. Davidson, No.
08-cv-333, 2008 WL 2944893, at *l (E.D. Wisc. July 25, 2008) (noting accumulation of three
"strikes"); Renoir v. Brown, No. 07-cv-l66, 2007 WL 1052477, at *l (W.D. Va. Apr. 05, 2007)
("Renoir has ‘three strikes’ under § 191 S(g)."). Accordingly, Mr. Renoir may proceed in forma
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pauperis only if he can show that he faces imminent danger of serious physical injury.
When determining whether a litigant qualifies for this imminent-danger exception,
a court must look to the complaint~here, the petition-which it must "‘construe liberally and
the allegations of which [it] must accept as true."’ Ibrahim v.``District of Columbia, 463 F.3d 3, 6
(D.C. Cir. 2006 (quoting Brown v. Johnson, 387 F.3d 1344, 1350 (l lth Cir. 2004)). Mr. Renoir
devotes two pages of his petition to allegations of an "[i]mmediate threat to plaintiffs life." Pet.
5-7. Specifically, Mr. Renoir alleges that his "cell partner has multiple homemade knives he
plans to use to kil1" him, that prison officials are aware of the risk, but that they intentionally do
nothing, "hoping that plaintiff will be killed." Id. at 5. Mr. Renoir requests an order to the U.S.
Marshals to search his cell "and remove the homemade knives." Ia’. at 9.
Mr. Renoir’s allegations of imminent physical danger at the hands of his cell mate
and as desired by prison officials are similar to those made in Ashley v. Dilworth, where the
Court of Appeals for the Eighth Circuit concluded that the imminent-danger exception applied to
an inmate where "defendants threatened to transfer him so as to place him near an enemy,
intending that he be harmed." 147 F.3d 715, 717 (8th Cir. 1998). Accepting Mr. Renoir’s
allegations as true, and considering the similarity to Ashley, the Court concludes that Mr. Renoir
qualifies for the immediate-danger exception. His application to proceed in forma pauperis will
therefore be granted.
III. The Motion to Amend the Petition Will Be Denied, but the Petition
Will Be Considered as Amended.
Mr. Renoir has moved the Court, in a combined motion, to both update him on the
status of this case and to amend the petition. The Court will consider the request for a status
update below. See discussion infra Part IX. However, the Court will deny the motion to amend,
because it is moot, Mr. Renoir may amend his complaint_here, his petition-once as a matter
of course. Fed. R. Civ. P. l5(a)(1). Accordingly, the Court hereby considers the petition
amended to include a "plea for court protection from immediate threat to life and for recognition
of diplomatic immunity."
As to the request for protection, the Court notes that the petition already contains
a plea for "immediate F ederal protection," Pet. 9, and that Mr. Renoir has also moved for a
temporary injunction to require that certain protective measures be taken. This portion of the
amended petition will therefore be considered where the Court discusses the plea for immediate
federal protection and the motion for a temporary injunction. See discussion infra Part Vl., VII.
As to the request for recognition of diplomatic immunity, the reason Mr. Renoir wishes the Court
to recognize such immunity is to collaterally attack his criminal conviction in Virginia. The
Court therefore construes this request as a petition for habeas corpus, which will be denied. See
discussion infra Part VI.
IV. The Motion to Notify the French and Japanese Embassies Will Be
Denied.
Mr. Renoir has moved the Court to notify the embassies of Japan and France of
the existence of this case and to provide those embassies with copies of all documents filed
therein. In support of the motion, Mr. Renoir asserts that he was bom in Tokyo, Japan, and that
he is a French diplomat. Neither assertion justifies providing notice to these embassies.
Mr. Renoir may have been bom in Tokyo, but he is a citizen of the United States.
Indeed, he provided the Court with a copy of his consular report of birth abroad, which identifies
~hfl_|llll\|lllm itt
that he acquired U.S. citizenship at birth. Mr. Renoir has articulated no other connection
between himself or this case and Japan. The Court therefore discems no interest that Japan could
have in this case, and will deny the motion as to the Japanese Embassy.
Mr. Renoir also claims that he is a French diplomat. Many of the documents
submitted by Mr. Renoir concentrate on this quixotic claim: that he allegedly had obtained a job
with the French Embassy in Washington, D.C., which included a diplomatic passport and thus
granted him diplomatic immunity, and that all of this can be proven by a letter from the embassy
that is in the possession of the assistant warden. While that may have been relevant to his
criminal proceedings, it is of no moment to this civil case. The Court therefore discems no
interest that France could have in this case, and will deny the motion as to the French Embassy.
V. The Motion for Appointment of Counsel Will Be Denied.
Mr. Renoir also asks the Court to appoint counsel to represent him and to order
prison officials to not deny access to Mr. Renoir by such counsel. The in forma pauperis statute
provides that "[t]he court may request an attorney to represent any person unable to afford
counsel." 28 U.S.C. § l9l5(e)(l); see LCvR 83.1 l(b)(3). In evaluating whether appointment is
appropriate, the Court should consider the following factors:
(i) the nature and complexity of the action;
(ii) the potential merit of the pro se party’s claims;
(iii) the demonstrated inability of the pro se party to retain
counsel by other means; and
(iv) the degree to which the interests of justice will be served by
appointment of counsel, including the benefit the Court
may derive from the assistance of the appointed counsel.
LCVR 83.ll(b)(3); Gaviria v. Reynolds, 476 F.3d 940, 943 (D.C. Cir. 2007) (noting that Local
Civil Rule 83.1 l(b)(3) provides the "metric for evaluating appointment of counsel"). None of
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dillin
these factors supports Mr. Renoir’s request for counsel.
First, this mandamus action is not complex, but rather involves relatively simple
questions of whether certain duties exist and are owed to Mr. Renoir. Second, considering that
this case will be dismissed see discussion infra Part Vl., it is difficult to say that Mr. Renoir’s
claims have potential merit. Third, Mr. Renoir has not demonstrated that he is unable to retain
counsel by other means; his motion is silent on this point. Finally, the Court will not
substantially benefit from, and the interests of justice will not be substantially served by,
appointment of counsel, because this case is about to be dismissed. Mr. Renoir’s request for
counsel will therefore be denied.
VI. The Petition for a Writ of Mandamus Will Be Dismissed.
In his petition for a writ of mandamus, Mr. Renoir asks the Court to compel the
Govemor of Virginia and the President of the United States to order U.S. Marshals to search his
prison cell and remove his cell mate’s shivs; place Mr. Renoir into immediate Federal protection;
recover from the assistant warden a letter allegedly sent to Mr, Renoir by the French Embassy;
appoint counsel for Mr. Renoir; and prevent officials to from denying access to Mr. Renoir by
such counsel. Pet. at 9~10. Mr. Renoir does not distinguish between which remedy he seeks
from which official Because the Court lacks jurisdiction to compel the Governor to do anything,
and because the petition fails to state a claim against the President upon which relief can be
granted, this petition will be dismissed.
In the amended portion of his petition, Mr. Renoir also asks that the Court
recognize his diplomatic immunity. Mr. Renoir thus seeks to have the Court effectively rule that
his current confinement is invalid. The Court therefore construes this portion of Mr. Renoir’s
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petition for a writ of mandamus as a separate petition for a writ of habeas corpus. See
Muhammad v. Close, 540 U.S. 749, 750 (2004) ("Challenges to the validity of any confinement
. . . are the province of haveas corpus . . . .") (citation omitted). "[A] district court may not
entertain a habeas petition involving present physical custody unless the respondent custodian is
within its territorial jurisdiction." Stokes v. U.S. Parole Comm ’n, 374 F.3d 1235, 1239 (D.C. Cir.
2004). Mr. Renoir’s custodian-a warden in western Virginia-is not within this Court’s
territorial jurisdiction. The portion of the petition for a writ of mandamus construed as a petition
for a writ of habeas corpus will therefore also be dismissed without prejudice.
Mr. Renoir also requests a hearing. Id. at 9. The Court is fully apprised of the
salient issues and will proceed without a hearing in this matter. See Fed. R. Civ. P. 78(b).
VII. The Motion for a Temporary Injunction Will Be Denied.
ln a separate motion, Mr. Renoir asks the Court to order U.S, Marshals to take
various actions to remove the alleged threat to his life while the Court considers his petition.
Specifically, Mr. Renoir requests, among other things, that Marshals search his cell and remove
his cell mate’s shivs. Because Mr. Renoir seeks by his motion to diminish a perceived threat to
his person pending adjudication of the merits of his petition, which seeks the permanent removal
of that threat, the Court construes this motion as one for a temporary injunction. See 42 Am. Jur.
2d Injunctions § 8 ("The object of a temporary injunction . . . is . . . to prevent a threatened wrong
or injury to property or rights until the issues and equities can be determined after a full
examination and hearing.")
The Court, however, has already adjudicated Mr. Renoir’s petition. See
discussion supra Part VI. The motion for a temporary injunction pending that adjudication is
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therefore moot and will be denied.
VIII. The Motion for a Permanent Injunction Will Be Denied.
Mr. Renoir has also moved the Court to seal "all photographs, images, likenesses,
etc., of plaintiff in state or F ederal possession" and enter a "permanent gag order . . . to prevent
release, publication, exposure, etc.," of the same "in any communication or publication medium,
etc." Because Mr. Renoir seeks by his motion to permanently prevent certain publications, the
Court construes this motion as one for a permanent injunction. See 42 Am. Jur. 2d injunctions §
10 ("A final or permanent injunction is perpetual in effect . . . .").
A permanent injunction is only appropriate, however, after a plaintiff has
prevailed on the merits of his claim. Hi-Tech Pharmacal Co., Inc. v. U.S. Food and Drug
Admin., 587 F. Supp. 2d 13, 17 (D.D.C. 2008) ("Actual success on the merits is required to
obtain permanent injunctive relief.") (citing Nichols v. Truscott, 424 F. Supp. 2d 124, 143
(D.D.C. 2006)). Mr. Renoir has not prevailed on the merits of his claims. See discussion supra
Part VI. Perrnanent injunctive relief is therefore inappropriate, and this motion will be denied.
IX. The Motion for a Status Update Will Be Denied.
This Memorandum Opinion effectively updates Mr. Renoir on the status of his
case, informing him that it has been dismissed and that all motions therein have been denied. An
additional status update is unnecessary. The motion for a status update is therefore moot and will
be denied.
X. Conclusion.
For the reasons set forth above, the application to proceed in forma pauperis will
be granted, the motion to amend will be denied, the motion to notify the French and Japanese
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Embassies will be denied, the motion for appointment of counsel will be denied, the petition for
a writ of mandamus and the petition for a writ of habeas corpus incorporated therein will be
dismissed, the motion for a temporary injunction will be denied, the motion for a permanent
injunction will be denied, and the motion for a status update will be denied. A separate order
consistent with this Memorandum Opinion shall issue this date.
ic.
Date:
l ¢4/7) //¢ United tates Di'§rict Judge
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