Staich v. Brown

Filing 7

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/9/2013 GRANTING petitioner's 2 request to proceed IFP; the 1 petition styled as a petition for writ of mandamus is DISMISSED for failure to state a claim upon which relief can be granted; petitioner has 30 days to file an amended petition; and the Clerk shall send petitioner the form for a petition for writ of habeas corpus. (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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IVAN VON STAICH,

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Petitioner,

No. 2:13-cv-0107 TLN CKD P

vs.
EDMUND BROWN, JR.,
Respondent.

ORDER

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Petitioner, a state prisoner, proceeds pro se with a petition styled as a petition for

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writ of mandate. Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to the undersigned by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
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). In his petition for writ of mandate, petitioner alleges that the Governor used false

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evidence to reverse his September 14, 2011 grant of parole. (Dkt. No. 1 at 2.) He seeks a writ of
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mandamus compelling respondent to redact false information from his institutional files, and

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compelling respondent to reinstate his September 14, 2011 grant of parole.

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Although the federal mandamus statute provides that “[t]he district courts shall

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have original jurisdiction of any action in the nature of mandamus to compel an officer or

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employee of the United States or any agency thereof to perform a duty owed to the plaintiff” (28

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U.S.C. § 1361), federal district courts are without power to issue mandamus to direct state courts,

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state judicial officers, or other state officials in the performance of their duties. A petition for a

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writ of mandamus to compel a state court or official to take or refrain from some action is

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frivolous as a matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161 (9th Cir.

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1991) (“We further note that this court lacks jurisdiction to issue a writ of mandamus to a state

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court.”); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“The federal courts are without

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power to issue writs of mandamus to direct state courts or their judicial officers in the

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performance of their duties[.]”); see also Newton v. Poindexter, 578 F.Supp. 277, 279 (C.D. Cal.

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1984) (§ 1361 has no application to state officers or employees). Accordingly, this court cannot

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grant the relief plaintiff seeks.

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Because the court cannot grant the mandamus relief sought by plaintiff, his

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petition will be dismissed for failure to state claim upon which relief can be granted. The court

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will, however, grant petitioner leave to amend. See Klamath-Lake Pharm. Ass’n v. Klamath

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Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that leave to amend shall be

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freely given).

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In addition, as to petitioner’s request for relief from the Governor’s reversal of a

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parole grant, petitioner is informed that such a claim is cognizable, if at all, in a petition for writ

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of habeas corpus. The court requires all petitions for writ of habeas corpus be filed on the proper

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form which is provided by this court. The court may limit its review of the petition for relief to

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the information on the form only and need not consider any memoranda or attachments to the

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petition. See Rule 2(c), Rules Governing § 2254 Cases. Petitioner is hereby notified that in
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order for this court to review his petition, he must refile on the proper form. Furthermore,

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although petitioner may submit a separate memorandum to support his petition for relief, the

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court’s application form must contain all relevant claims, and must provide the court with all

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necessary information.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis (Dkt. No. 2) is

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GRANTED.

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2. The petition styled as a petition for writ of mandamus (Dkt. No. 1) is
DISMISSED for failure to state a claim upon which relief can be granted.

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3. Petitioner is granted 30 days within which he may file an amended petition.

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Any amended petition must be filed on the form employed by this court and must state all claims

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and prayers for relief on the form. It must bear the case number assigned to this action and must

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bear the title “Amended Petition.”

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4. The Clerk of the Court is directed to send petitioner the proper form for a
petition for writ of habeas corpus.
Dated: April 9, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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