Lopez v. McComb

Filing 22

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/23/15 ORDERING that petitioners request for leave to proceed in forma pauperis is granted. It is RECOMMENDED that the petition for a writ of mandamus be dismissed for lack of jurisdiction. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL LEE LOPEZ,

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No. 2:14-cv-1798-WBS-EFB P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

WARDEN McCOMB,

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Respondent.

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Darrell Lee Lopez is a state prisoner proceeding without counsel.1 He has filed what he

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styled as a “notice of appeal” from various state court rulings which resulted in this action being

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opened. ECF No. 1. However, in subsequent filings, Mr. Lopez stated that his intent is not to file

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a civil rights complaint or an application for a writ of habeas corpus, but rather, to have his “case

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reopened at the state level . . . [with] counsel of [his] choice.” ECF No. 7 at 3. He was

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subsequently instructed that he had not properly commenced a civil action and that to do so he

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must file a complaint or petition. ECF No. 9 (citing Fed. R. Civ. P. 3; Rule 3, Rules Governing

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§ 2254 Cases; Woodford v. Garceau, 538 U.S. 202, 203 (2003)). He was also instructed that he

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must either file an in forma pauperis affidavit or pay the required filing fee ($5.00). Id. (citing 28

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Mr. Lopez seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs
of suit.

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U.S.C. §§ 1914(a); 1915(a)). He has now filed an application for leave to proceed in forma

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pauperis and the supporting affidavit indicates that he is unable to afford the costs of suit but still

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has not properly filed a complaint or petition sufficient to invoke the court’s subject matter

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jurisdiction.

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Mr. Lopez continues to file “amendments” and “motions for mandate” requesting that he

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be appointed attorneys and investigators of his choice, as well as a pretrial hearing date and a trial

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date for his state court proceedings. He also complains of a pattern of sexual assaults, and has

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submitted requests for medical care and a request that an unnamed prison officials be criminally

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charged. See ECF Nos. 7, 8, 11, 13, 14, 15, 17, 20. But Mr. Lopez has filed neither a federal

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habeas petition or a complaint under 42 U.S.C. § 1983 in spite of having been ordered to do so.

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ECF Nos. 3, 9 at 2.

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Federal courts offer two main avenues to relief on complaints related to one’s

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imprisonment – a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a civil rights

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complaint pursuant to 42 U.S.C. § 1983. Challenges to the validity of one’s confinement or the

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duration of one’s confinement are properly brought in a habeas action, whereas requests for relief

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turning on the circumstances of one’s confinement are properly brought in a § 1983 action.

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Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973)).

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Instead of filing a petition for habeas corpus pursuant to 28 U.S.C. § 2254 or a civil rights

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complaint pursuant to 42 U.S.C. § 1983, he continues to seek a writ of mandamus to compel

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action by the state courts. Federal district courts, however, are not authorized to issue writs of

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mandamus to direct state courts, state judicial officers, or other state officials in the performance

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of their duties. See Demos v. U.S. District Court, 925 F.2d 1160, 1161 (9th Cir. 1991) (“We

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further note that this court lacks jurisdiction to issue a writ of mandamus to a state court.”); Clark

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v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (“The federal courts are without power to issue

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

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duties[.]”); see also Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no

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application to state officers or employees). Therefore, the court cannot afford Mr. Lopez the
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relief he requests and his filings, construed as an application for a writ of mandamus, must be

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denied.

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Accordingly, it is ORDERED that petitioner’s request for leave to proceed in forma
pauperis is granted.

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However, it is RECOMMENDED that the petition for a writ of mandamus be dismissed
for lack of jurisdiction.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. 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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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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DATED: April 23, 2015.

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