Gonzalez-Longoria v. Wong et al

Filing 6

ORDER DIRECTING Clerk of Court to Assign a District Judge to this matter; FINDINGS and RECOMMENDATIONS recommending that the Petition be dismissed without prejudice to Petitioner bringing his claims in either a petition for writ of habeas corpus or a civil rights action re 1 Petition filed by Jose Leon Gonzalez-Longoria ; referred to Judge O'Neill; new case number is 1:17-cv-01587-LJO-MJS, signed by Magistrate Judge Michael J. Seng on 03/7/18. Objections to F&R due by 4/12/2018 (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSE LEON GONZALEZ-LONGORIA, Petitioner, 11 v. 12 13 DENNIS WONG, et al., Respondents. 14 Case No. 1:17-cv-01587-MJS ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS MATTER FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF MANDAMUS 15 (ECF NO. 1) 16 THIRTY (30) DAY OBJECTION DEADLINE 17 18 19 Petitioner is in the custody of the Bureau of Prisons at United States Penitentiary 20 Atwater in Atwater, California. He has filed the instant petition for writ of mandamus 21 pursuant to 28 U.S.C. § 1361. He contends that Warden Andre Matevousian has 22 unlawfully seized funds from his trust account and limited his incoming mail as an 23 unauthorized form of punishment. 24 I. Screening Requirement 25 The Court is required to screen complaints brought by prisoners seeking relief 26 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 28 1 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 2 relief may be granted, or that seek monetary relief from a defendant who is immune from 3 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 4 thereof, that may have been paid, the court shall dismiss the case at any time if the court 5 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 6 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 II. Legal Standards Applicable to Petitions for Writ of Mandamus 8 A writ of mandamus is a request that the court compel an officer or employee of 9 the United States to perform a duty owed to the petitioner. 28 U.S.C. § 1361; Allied 10 Chemical Corp. v. Deiflon, Inc., 449 U.S. 33, 34 (1980); see also Deutsch v. United 11 States, 943 F. Supp. 276, 279 (W.D.N.Y. 1996) (finding jurisdiction over mandamus 12 claim based on prisoner's request to expedite deportation proceedings). However, 13 mandamus is an extraordinary remedy. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998); 14 Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994); Stang v. IRS, 788 F.2d 564, 565 15 (9th Cir. 1986). Mandamus is only available when (1) the petitioner's claim is clear and 16 certain; (2) the duty is ministerial and so plainly prescribed as to be free from doubt; and 17 (3) no other adequate remedy is available. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th 18 Cir. 2003); Patel, 134 F.3d at 931; Barron, 788 F.2d at 1374. 19 III. Discussion 20 Petitioner has failed to meet the basic threshold for mandamus relief. Either he is 21 challenging the execution of his sentence, in which case his claims may be cognizable in 22 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, or he is challenging 23 the conditions of his confinement, in which case his claims may be cognizable in a civil 24 rights action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal 25 Bureau of Narcotics, 403 U.S. 388 (1971), the “federal analogue” to an action brought 26 pursuant to 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006). 27 28 2 1 Under either circumstance, he has not shown that no other adequate remedy is 2 available. 3 Mandamus relief is therefore unavailable. This defect cannot be cured through 4 amendment. 5 IV. Construing Action as Habeas Corpus or Civil Rights Action 6 The Court chooses not to construe the petition for writ of mandamus as a petition 7 for writ of habeas corpus or as a civil rights action because Petitioner specifically chose 8 to file a petition for writ of mandamus. (ECF No. 1 at 1.) Petitioner is the master of his 9 pleading and the Court will respect his choice. See Bogovich v. Sandoval, 189 F.3d 999, 10 1001 (9th Cir. 1999) (“‘[T]he party who brings a suit is master to decide what law he will 11 rely upon.’”) Furthermore, as stated, the petition’s passing reference to disciplinary 12 sanctions makes it unclear whether Petitioner raises a challenge to the execution of his 13 sentence that may be brought in a habeas petition, or a challenge to the conditions of his 14 confinement which may only be brought in a civil rights action. 15 V. Conclusion and Recommendation 16 Petitioner is not entitled to mandamus relief. Accordingly, it is HEREBY 17 RECOMMENDED that the petition be dismissed without prejudice to Petitioner bringing 18 his claims in either a petition for writ of habeas corpus or a civil rights action. 19 The findings and recommendation are submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 21 thirty (30) days after being served with the findings and recommendation, any party may 22 file written objections with the Court and serve a copy on all parties. Such a document 23 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 24 Any reply to the objections shall be served and filed within fourteen (14) days after 25 service of the objections. The parties are advised that failure to file objections within the 26 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 27 28 3 1 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 2 1991)). 3 4 5 IT IS SO ORDERED. Dated: March 7, 2018 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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