Bryant v. Gallagher et al

Filing 171

ORDER Denying Plaintiff's Motion for Writ of Mandate 147 , signed by District Judge Lawrence J. O'Neill on 11/10/14. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KEVIN DARNELL BRYANT,

12

Plaintiff,

13
14

v.
GALLAGHER, et al.,

15

Defendants.

16
17
18

)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:11-cv-00446-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
WRIT OF MANDATE
(ECF No. 147)

Plaintiff Kevin Darnell Bryant, a state prisoner proceeding pro se and in forma pauperis, filed

19

this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s first

20

amended complaint, filed on July 5, 2011, against Defendant Romero for deliberate indifference to

21

serious medical needs in violation of the Eighth Amendment; and against Defendants Gallagher and

22

Romero for conspiracy, retaliation in violation of the Eighth Amendment and failure to protect in

23

violation of the Eighth Amendment.

24

On August 29, 2014, Plaintiff filed a petition for a writ of mandate seeking an order directing

25

Warden Dave Davey to order his officer, D. Hicks, to return original pages torn out of Plaintiff’s

26

litigation manual during a February 2014 cell search at California State Prison, Corcoran. Plaintiff

27

states that the pages contain information regarding several dozen witnesses, expert witnesses and

28

others.
1

1

The All Writs Act provides that “[t]he Supreme Court and all courts established by Act of

2

Congress may issue all writs necessary or appropriate in the aid of their respective jurisdictions and

3

agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). While a writ of mandamus may

4

be issued under the All Writs Act, “[m]andamus is a ‘drastic and extraordinary remedy reserved for

5

really extraordinary causes.’” Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010) (quoting

6

Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 2586 (2004)).

7

Plaintiff’s attempt to seek relief via a petition for writ of mandamus is misplaced. In addition

8

to jurisdictional issues arising from Plaintiff’s desire for a federal writ directed at state prison officials,

9

see Cheney, 542 U.S. at 380, 124 S.Ct. at 2586 (section 1651(a) codified the common-law writ of

10

mandamus against a lower court); Demos v. U.S. Dist. Court for Eastern Dist. of Washington, 925

11

F.2d 1160, 1161-62 (9th Cir. 1991) (no jurisdiction to issue writ to a state court), Plaintiff cannot

12

demonstrate (1) the absence of any other adequate means to attain relief and (2) a clear and

13

indisputable right to the issuance of the writ, Cheney, 542 U.S. at 380-81, 124 S.Ct. at 2587.

14

In this action, Plaintiff is challenging his conditions of confinement at Kern Valley State

15

Prison, not California State Prison, Corcoran. If Plaintiff prevails, he may be entitled to damages, but

16

in no event is Plaintiff entitled to the issuance of a writ of mandamus. Accordingly, Plaintiff’s petition

17

is HEREBY ORDERED DENIED with prejudice.

18

IT IS SO ORDERED.

19
20

Dated:

/s/ Lawrence J. O’Neill

November 10, 2014

UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
2