Cohea v. USDC, Eastern District of CA, et al.
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Mandamus signed by Magistrate Judge Michael J. Seng on 12/26/2017. Referred to Judge O'Neill; Objections to F&R due by 1/29/2018. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DANNY JAMES COHEA,
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Petitioner,
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Case No. 1:17-cv-01324-LJO MJS (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR WRIT OF
MANDAMUS
v.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF
CALIFORNIA, et al.,
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(ECF No. 2)
Respondents.
THIRTY-DAY OBJECTION DEADLINE
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Petitioner is a state prisoner proceeding pro se with a petition for writ of
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mandamus brought pursuant to 28 U.S.C. § 1361. He petitions for removal of
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encumbrances imposed by the Court on his prison trust account to cover filing fees in
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five separate civil cases he filed.
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I.
Background
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Between 1997 and 2016, Petitioner filed five civil actions in the Eastern District of
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California: Cohea v. Bray, et al., Case No. 2:97-cv-00366-FCD-DAD (E.D. Cal. Mar. 11,
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1997); Cohea v. Jones, et al., Case No. 2:07-cv-00694-FCD-DAD (E.D. Cal. Apr. 11,
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2007); Cohea v. California Department of Corrections and Rehabilitation, et al., Case
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No. 1:07-cv-00469-SRB (E.D. Cal. Mar. 26, 2007); Cohea v. Tucker, et al., Case No.
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1:14-cv-01544-RRB (E.D. Cal. Oct. 2, 2014); Cohea v. Pacillas, et al., Case No. 1:16-cv-
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00949-AWI-MJS (E.D. Cal. July 1, 2016).
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In Bray and Jones, Petitioner’s complaints were dismissed for failure to state a
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claim and failure to exhaust administrative remedies. The Ninth Circuit dismissed
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Petitioner’s appeal in Bray and affirmed the judgment in Jones.
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In California Department of Corrections and Rehabilitation (CDCR), Tucker, and
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Pacillas, the Court revoked in forma pauperis status and required Petitioner to pay the
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filing fee in full. Petitioner’s appeal in CDCR was dismissed by the Ninth Circuit for failure
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to pay the filing fee. The district judges dismissed Petitioner’s complaints in Tucker and
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Pacillas for failure to pay the filing fee.
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Petitioner asserts that despite all of these actions being dismissed (and in forma
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pauperis status being revoked in three of them), the encumbrances placed on his trust
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account from the granting of in forma pauperis status remain. Petitioner therefore
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petitions the Chief Judge of the Eastern District of California to issue an order removing
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the encumbrances on his California Department of Corrections and Rehabilitation trust
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account statement for each of these cases. (ECF No. 1 at 72.) Petitioner also requests
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that Chief Judge direct the Clerk of Court to refund $51.02 that was already paid out of
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the trust account in the Bray matter. (Id.)
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II.
Screening Requirement
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-
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28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is
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based on an indisputably meritless legal theory or where the factual contentions are
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clearly baseless. Neitzke, 490 U.S. at 327.
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III.
Legal Standard
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A writ of mandamus is a request that the court compel an officer or employee of
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the United States to perform a duty owed to the petitioner. 28 U.S.C. § 1361; Allied
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Chemical Corp. v. Deiflon, Inc., 449 U.S. 33, 34 (1980); see also Deutsch v. United
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States, 943 F. Supp. 276, 279 (W.D.N.Y. 1996) (finding jurisdiction over mandamus
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claim based on prisoner's request to expedite deportation proceedings). However,
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mandamus is an extraordinary remedy. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998);
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Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994); Stang v. IRS, 788 F.2d 564, 565
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(9th Cir. 1986). Mandamus is only available when (1) the petitioner's claim is clear and
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certain; (2) the duty is ministerial and so plainly prescribed as to be free from doubt; and
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(3) no other adequate remedy is available. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th
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Cir. 2003); Patel, 134 F.3d at 931; Barron, 788 F.2d at 1374. Mandamus may not be
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used as a substitute for an untimely notice of appeal. See Compania Mexicana de
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Aviacion v. United States District Court, 859 F.2d 1354, 1357–58 (9th Cir. 1988); Clorox
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v. United States District Court, 779 F.2d 517, 519 (9th Cir. 1985).
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Mandamus relief is only available to compel an officer of the United States to
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perform a duty; federal courts are without the power to issue mandamus to direct state
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courts or state officers in the performance of their duties. A petition for mandamus to
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compel a state court to take or refrain from some action is frivolous as a matter of law.
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Demos v. U.S. District Court, 925 F.2d 1160, 1161-72 (9th Cir. 1991) (no jurisdiction to
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issue writ to a state court); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966)
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(attorney contested disbarment and sought reinstatement); Dunlap v. Corbin, 532 F.
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Supp. 183, 187 (D. Ariz. 1981) (plaintiff sought order from federal court directing state
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court to provide speedy trial), aff'd without opinion, 673 F.2d 1337 (9th Cir.1982); see
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also Legardy v. Superior Court of State fo California, No. 1:07-cv-00338-AWI WMW,
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2007 WL 1469040 (E.D. Cal. May 17, 2017).
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IV.
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Discussion
Petitioner brings this petition against the United States District Court for the
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Eastern District of California, the Ninth Circuit Court of Appeals, the Governor of
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California, and the Attorney General of California. (ECF No. 1.) The Court will discuss
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the petition as to the Respondent federal courts first, and then concerning the state
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Respondents.
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A.
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Concerning the claims against the federal courts, Petitioner cannot demonstrate
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United States District Court and Court of Appeals
that there is no other adequate remedy available.
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A review of the five cases reveals that Petitioner only raised the issue of the
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encumbrance in Pacillas. In his motion for reconsideration concerning the decision to
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revoke in forma pauperis status, Petitioner included a request that the revocation to be
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reflected in his trust account statement if the it was upheld. See Cohea v. Pacillas, Case
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No. 1:16-cv-00949-AWI-MJS, ECF No. 14 at 1-2 (E.D. Cal. Jan. 9, 2017). While the
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Court rejected the motion for reconsideration, finding that Petitioner merely repeated the
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same arguments as in his objections, the issue with the trust account was never
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addressed. See Cohea v. Pacillas, Case No. 1:16-cv-00949-AWI-MJS, ECF No. 15 (E.D.
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Cal. June 28, 2017). The Court ordered Petitioner to pay the filing fee within ten days or
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face dismissal of his case. (Id.) The fee was not paid and the case was dismissed on
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October 26, 2017. See Cohea v. Pacillas, Case No. 1:16-cv-00949-AWI-MJS, ECF Nos.
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15; 16 (E.D. Cal. Oct. 26, 2017). The issue of the encumbrance was never addressed by
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the Court in that matter and Petitioner did not file an appeal.
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The writ of mandamus is an extraordinary remedy reserved for situations where a
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trial court has exceeded its authority. Kerr v. United States, 426 U.S. 394, 402, (1976);
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Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir. 1977).
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Petitioner's failure to submit this issue to the district court judge in four of the
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cases -- and failure to appeal the issue in the fifth -- gravely weakens the case for the
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writ of mandamus. The need to show the lack of an available remedy absent a writ of
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mandamus goes to the heart of this extraordinary remedy which should be sparingly
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employed. See Kerr, 426 U.S. at 403 (holding that “as a means of implementing the rule
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that the writ will issue only in extraordinary circumstances,” the party seeking the writ
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must “have no other adequate means to attain the relief he desires”). In the ordinary
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course, the district courts are to be called on, in the first instance, to correct any clear
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error in the decision of a judge on non-dispositive matters. Furthermore, mandamus may
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not be used as a substitute for an untimely notice of appeal. See Compania Mexicana de
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Aviacion, 859 F.2d at 1357–58; Clorox, 779 F.2d at 519.
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Mandamus is an extraordinary remedy for circumstances where there are no
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alternative avenues for relief. Here, Petitioner cannot demonstrate an absence of
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alternative remedies. In each case, the Court directed the Clerk of Court to impose the
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encumbrance when granting in forma pauperis status. See Cohea v. Bray, et al., Case
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No. 2:97-cv-00366-FCD-DAD, ECF No. 5 (E.D. Cal. Apr. 24, 1997); Cohea v. Jones, et
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al., Case No. 2:07-cv-00694-FCD-DAD, ECF No. 9 (E.D. Cal. June 19, 2007); Cohea v.
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California Department of Corrections and Rehabilitation, et al., Case No. 1:07-cv-00469-
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SRB, ECF No. 7 (E.D. Cal. May 15, 2007); Cohea v. Tucker, et al., Case No. 1:14-cv-
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01544-RRB, ECF No. 4 (E.D. Cal. Oct. 3, 2014); Cohea v. Pacillas, et al., Case No.
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1:16-cv-00949-AWI-MJS, ECF No. 9 (E.D. Cal. Sept. 8, 2016). Just as the judge in each
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matter directed the imposition of the encumbrance, so too is each judge empowered to
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rescind the encumbrance without the extraordinary intervention of a mandamus petition.
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See Landis v. N. Am. Co., 299 U.S. 248, 254–255 (1936) (The court has inherent
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authority to manage the cases before it); Thompson v. Housing Authority of Los Angeles,
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782 F.2d 829, 831 (9th Cir. 1986) (“District courts have inherent power to control their
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dockets”); Mediterranean Enterprises, Inc. v. SSangyong Corporation, 708 F.2d 1458,
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1465 (9th Cir. 1983) (Courts possess substantial inherent powers to control and manage
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their dockets).
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Here, Petitioner only raised the issue of the encumbrance in one of the five cases
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in which it was imposed. And in that one instance where he did raise it, he did not
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pursue his claim through to the appellate process. Furthermore, in the Bray matter,
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Petitioner has not filed a motion requesting a refund of the fee amount paid from his trust
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account. See Cohea v. Bray, et al., Case No. 2:97-cv-00366-FCD-DAD (E.D. Cal. Mar.
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11, 1997). Accordingly, Petitioner cannot demonstrate that there is no other adequate
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remedy available to him for rescinding the encumbrances or receiving a refund (if he is
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even entitled to such relief) because he has failed to make the requests with the relevant
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Courts that issued the Orders -- or, as with the Pacillas matter, failed to follow through on
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his request through an appeal.
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For the foregoing reasons, the petition for writ of mandamus as to the Respondent
federal courts cannot proceed and must be dismissed without prejudice.
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B.
California Governor and Attorney General
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Insofar as Petitioner makes a claim for mandamus relief against the California
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Governor, Edmund G. Brown, Jr., and Attorney General, Xavier Becerra,1 such a claim is
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frivolous as a matter of law. The federal mandamus statute provides that “[t]he district
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courts shall have original jurisdiction of any action in the nature of mandamus to compel
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an officer or employee of the United States or any agency thereof to perform a duty
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owed to the plaintiff.” 28 U.S.C. § 1361. This section has no application to state officers
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or employees. See Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984).
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Accordingly, this Court is without power to issue a writ of mandamus ordering the
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California Governor and Attorney General, through the CDCR, to remove the
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encumbrances from Petitioner’s trust account statement. The Court therefore must
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dismiss Petitioner’s claim for mandamus relief with prejudice.
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V.
Conclusion and Recommendations
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition
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(ECF No. 1) be dismissed without prejudice as to Respondents United States District
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Court for the Eastern District of California and the Ninth Circuit Court of Appeals, and be
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dismissed with prejudice as to the California Governor and Attorney General.
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Petitioner names Kamala D. Harris as the Attorney General of California; however, as
of 2017, Kamala Harris is a United States Senator and Xavier Becerra is now the
Attorney General of California.
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The findings and recommendation are submitted to the assigned United States
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District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and
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Rule 304 of the Local Rules of Practice for the United States District Court, Eastern
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District of California. Within thirty (30) days after being served with a copy, the parties
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may file written objections with the Court. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” Any reply to the
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objections shall be served and filed within thirty days after service of the objections. The
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parties are advised that failure to file objections within the specified time may result in
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the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
December 26, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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