Allred v. California Department of Corrections & Rehabilitation et al

Filing 25

ORDER DENYING Plaintiff's Motion for Petition for Writ of Mandamus 24 , signed by Magistrate Judge Stanley A. Boone on 9/5/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
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CORRECTIONS AND REHABILITATION,
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et al.,
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Defendants.
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JESSE D. ALLRED,

Case No.: 1:16-cv-01571-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
PETITION FOR WRIT OF MANDAMUS
[ECF No. 24]

Plaintiff Jesse D. Allred is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s petition for writ of mandamus, filed August 31, 2017.

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Plaintiff seeks an order directing J. Clark Kelso, Receiver, at California Correctional Health Care

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Service, and G. Milliken, Public Records Act Coordinator, at California Correctional Health Care

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Service to disclose the position and location of Martin Martinez (identified as a Defendant in this

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action who has not yet been served with process).

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The federal mandamus status provides: “The district courts shall have original jurisdiction of

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any action in the nature of mandamus to compel an officer or employee of the United States or any

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agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is an

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extraordinary remedy, however. It is available to compel a federal officer to perform a duty only if:

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(1) the plaintiff’s claim is clear and certain; (2) the duty of the officer is ministerial and so plainly

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prescribed as to be free from doubt; and (3) no other adequate remedy is available. See Fallini v.

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Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986).
On September 1, 2017, the Court issued a second order directing service of process by the

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United States Marshal on Defendant Martin Martinez. (ECF No. 23.) Accordingly, Plaintiff’s request

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for a further order is denied as moot. Furthermore, the Court has no authority to take the action

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requested by Plaintiff against the identified prison officials, who are state actors, by way of writ of

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mandamus. A petition for mandamus to compel a state court or official to take or refrain from some

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action is frivolous as matter of law. See Demons v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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September 5, 2017
UNITED STATES MAGISTRATE JUDGE

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