Gonzalez-Longoria v. Wong et al
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSE LEON GONZALEZ-LONGORIA,
Petitioner,
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v.
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DENNIS WONG, et al.,
Respondents.
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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
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(ECF NO. 1)
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THIRTY (30) DAY OBJECTION DEADLINE
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Petitioner is in the custody of the Bureau of Prisons at United States Penitentiary
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Atwater in Atwater, California. He has filed the instant petition for writ of mandamus
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pursuant to 28 U.S.C. § 1361. He contends that Warden Andre Matevousian has
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unlawfully seized funds from his trust account and limited his incoming mail as an
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unauthorized form of punishment.
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I.
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, malicious,” or 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). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may
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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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II.
Legal Standards Applicable to Petitions for Writ of Mandamus
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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.
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III.
Discussion
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Petitioner has failed to meet the basic threshold for mandamus relief. Either he is
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challenging the execution of his sentence, in which case his claims may be cognizable in
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a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, or he is challenging
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the conditions of his confinement, in which case his claims may be cognizable in a civil
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rights action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal
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Bureau of Narcotics, 403 U.S. 388 (1971), the “federal analogue” to an action brought
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pursuant to 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006).
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Under either circumstance, he has not shown that no other adequate remedy is
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available.
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Mandamus relief is therefore unavailable. This defect cannot be cured through
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amendment.
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IV.
Construing Action as Habeas Corpus or Civil Rights Action
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The Court chooses not to construe the petition for writ of mandamus as a petition
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for writ of habeas corpus or as a civil rights action because Petitioner specifically chose
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to file a petition for writ of mandamus. (ECF No. 1 at 1.) Petitioner is the master of his
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pleading and the Court will respect his choice. See Bogovich v. Sandoval, 189 F.3d 999,
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1001 (9th Cir. 1999) (“‘[T]he party who brings a suit is master to decide what law he will
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rely upon.’”) Furthermore, as stated, the petition’s passing reference to disciplinary
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sanctions makes it unclear whether Petitioner raises a challenge to the execution of his
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sentence that may be brought in a habeas petition, or a challenge to the conditions of his
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confinement which may only be brought in a civil rights action.
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V.
Conclusion and Recommendation
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Petitioner is not entitled to mandamus relief. Accordingly, it is HEREBY
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RECOMMENDED that the petition be dismissed without prejudice to Petitioner bringing
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his claims in either a petition for writ of habeas corpus or a civil rights action.
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The findings and recommendation are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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thirty (30) days after being served with the findings and recommendation, any party may
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file written objections with the Court and serve a copy on all parties. Such a document
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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”
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Any reply to the objections shall be served and filed within fourteen (14) days after
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service of the objections. The parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772
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F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.
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1991)).
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IT IS SO ORDERED.
Dated:
March 7, 2018
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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