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)

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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

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