Williams v. State of California et al

Filing 49

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/12/2012 RECOMMENDING that this action be dismissed. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KIRK DOUGLAS WILLIAMS,
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Plaintiff,

No. CIV S-10-2893 KJM CKD P

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vs.
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STATE OF CALIFORNIA, et al.,

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Defendants.

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FINDINGS & RECOMMENDATIONS

By order filed July 29, 2011, plaintiff’s complaint was dismissed and thirty days’

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leave to file an amended complaint was granted. Plaintiff was granted additional extensions of

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time to file the amended complaint on October 26, 2011 and November 16, 2011. By order filed

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December 28, 2011, plaintiff was granted a final thirty-day extension of time to file an amended

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complaint. In that order, the court noted plaintiff’s history of filing frivolous motions, and

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cautioned plaintiff that “no further extensions of time will be allowed.”

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The thirty day period has now expired, and plaintiff has not filed an amended

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complaint. Instead, he has continued his practice of filing pleadings that are not pertinent to

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issues before the court, are duplicative, or are not properly noticed for hearing. The multiplicity

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of plaintiff’s filings are a burden on the court.

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Plaintiff’s March 8, 2012 petition for writ of mandamus is a case in point.

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Pursuant to 28 U.S.C. § 1361, district courts “have original jurisdiction of any action in the

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nature of mandamus to compel an officer or employee of the United States or any agency thereof

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to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus is an “extraordinary

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remedy.” Miller v. French, 530 U.S. 327, 339 (2000). It is available to compel a federal official

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to perform a duty only if: (1) the plaintiff’s claim is clear and certain; (2) the official’s duty is

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nondiscretionary, ministerial and so plainly prescribed as to be free from doubt, and (3) no other

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adequate remedy is available. Patel v. Reno, 134 F.3d 929, 931 (9th Cir.1997). Even if this test

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is met, the district court still retains the discretion to deny relief. Johnson v. Reilly, 349 F.3d

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1149, 1154 (9th Cir. 2003) (citation omitted). Here, plaintiff has frivolously filed a petition for

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writ of mandamus in an attempt to compel the court to revisit its earlier ruling on petitioner’s

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frivolous motion to stay. This does not alter the fact that plaintiff has missed the final deadline

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for filing an amended complaint.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.
See Local Rule 110; Fed. R. Civ. P. 41(b).

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These findings and recommendations 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)(l). Within fourteen

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Any response to the objections shall be filed and served

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within fourteen days after service of the objections. Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 12, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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