Eleson v. Tippen et al
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 12/8/14 ORDERING that Petitioners Verified Petition 1 is DISMISSED with leave to file an amended pleading. Petitioners motion application to proceed in forma pauperis 2 is DENIED without prej udice. The Clerk of Court is directed to send petitioner, together with a copy of this order, the following blank forms: (1) an application to proceed in forma pauperis used by prisoners in this district; (2) a civil complaint (for nonprisoners); (3) a prisoner civil rights complaint under 42 U.S.C. § 1983; and (4) a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner shall, within 30 days from the date of this order, file a new and fully completed application to proceed in forma pauperis, and a new pleading that clearly demonstrates this courts original jurisdiction and states a potentially cognizable claim for relief.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ERIC RICHARD ELESON,
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Petitioner,
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v.
No. 2:14-cv-02019 KJM DAD P
ORDER
SCOTT TIPPEN, Post Master, et al.,
Respondents.
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Petitioner, a state prisoner proceeding pro se, has filed a “Verified Petition for Writ in
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Nature of Mandamus,” together with a “short form” application to proceed in forma pauperis.
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Upon its opening this action was provisionally designated by the Clerk of Court as a petition for
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writ of habeas corpus pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by
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Local Rule 302, pursuant to 28 U.S.C. § 636(b)(1).
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Petitioner’s “Verified Petition” is difficult to decipher. Therein petitioner asserts that the
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court has jurisdiction over this action under the “Mandamus Act,” 28 U.S.C. § 1651, and the
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general provisions authorizing federal judicial review under 5 U.S.C. §§ 702-705. In addition,
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petitioner relies on the Freedom of Information Act (FOIA), 5 U.S.C. § 552, in seeking a court
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order compelling the United States Post Office to produce records explaining the employment
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status of an identified postal worker (not named as a respondent or defendant herein) who
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petitioner alleges was responsible for failing to process petitioner’s mail. Because the precise
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nature of this action is unclear and the in forma pauperis application is incomplete, petitioner will
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be granted leave to file a new and properly completed application to proceed in forma pauperis,
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and a new pleading that establishes the original jurisdiction of this court over the matters plaintiff
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challenges herein.
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Petitioner is informed that the Mandamus1 (All Writs) Act does not confer original
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jurisdiction on federal courts but may be invoked only to aid already existing jurisdiction. See 28
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U.S.C. § 1651(a) (“The Supreme Court and all courts established by Act of Congress may issue
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all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the
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usages and principles of law.”); Lights of America, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal.,
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130 F.3d 1369, 1370 (9th Cir. 1997) (“courts must possess an independent source of jurisdiction
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before entertaining a request for a writ of mandamus”). Similarly, 5 U.S.C. §§702-705 identifies
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the contours for federal judicial review without conferring original jurisdiction. In the event that
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jurisdiction is independently and properly pled, “injunctive relief under the All Writs Act is to be
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used sparingly and only in the most critical and exigent circumstances. Such an injunction is
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appropriate only if the legal rights at issue are indisputably clear.” Brown v. Gilmore, 533 U.S.
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1301 (2001) (citations and internal quotation marks omitted.)
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Federal courts do have original jurisdiction under FOIA “to enjoin the [challenged]
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agency from withholding agency records and to order the production of any agency records
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improperly withheld from the complainant” upon a proper complaint filed pursuant to the statute.
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5 U.S.C. § 552(a)(4)(B). “FOIA gives individuals a judicially-enforceable right of access to
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government agency documents.” Lion Raisins Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1079
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(9th Cir. 2004) (citing 5 U.S.C. § 552). If a FOIA request reasonably describes the documents
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sought and complies with published rules as to time, place, fees, and procedures, the agency
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“shall make the records promptly available” to the person who requested them. 5 U.S.C. §
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552(a)(3)(A). In the interests of full agency disclosure, FOIA’s disclosure requirements are to be
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Rule 81(b) of the Federal Rules of Civil Procedure abolished writs of mandamus and provides
that “[r]elief heretofore available by mandamus . . . may be obtained by appropriate action or by
appropriate motion under the practice prescribed in these rules.”
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interpreted broadly. John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989); Lion
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Raisins, 354 F.3d at 1079. In order to prevent the disclosure of sensitive government documents,
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FOIA lists nine statutory exemptions. 354 F.3d at 1079 (citing 5 U.S.C. § 552(b)(1)-(9)). Those
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statutory exemptions are to be narrowly construed. Id. (citing John Doe Agency, 493 U.S. at
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152). The burden is on the agency to sustain its decision to withhold documents pursuant to an
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enumerated exemption. Id. (citing 5 U.S.C. § 552(a)(4)(B)).
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In the present case, it is not clear from his petition that petitioner seeks to invoke the
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original jurisdiction of this court under FOIA. If, however, petitioner is attempting to pursue an
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actual FOIA claim, he must clearly articulate a cognizable FOIA claim in a new and clearly pled
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complaint. In any FOIA complaint petitioner elects to file he shall not assert original jurisdiction
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over his action by this court under 28 U.S.C. § 1651(a) or 5 U.S.C. §§702-705. On the other
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hand, if petitioner is pursuing a writ of habeas corpus or is attempting to bring a civil rights action
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of some kind, he must so indicate in any petition or complaint he elects to file. Petitioner will be
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accorded an opportunity to file the appropriate pleading.
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Finally, the application to proceed in forma pauperis submitted by petitioner is shorter
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than that used in this court and does not include the certificate portion that must be completed by
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an official at petitioner’s place of incarceration. Therefore, petitioner will be provided with the
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appropriate form for seeking in forma pauperis status in this court, and the opportunity to submit
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the completed form together with a completed certificate and new copy of petitioner’s prison trust
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account statement for the preceding six months.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s “Verified Petition” (ECF No. 1) is dismissed with leave to file an amended
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pleading.
2. Petitioner’s motion application to proceed in forma pauperis (ECF No. 2) is denied
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without prejudice.
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3. The Clerk of Court is directed to send petitioner, together with a copy of this order, the
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following blank forms: (1) an application to proceed in forma pauperis used by prisoners in this
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district; (2) a civil complaint (for nonprisoners); (3) a prisoner civil rights complaint under 42
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U.S.C. § 1983; and (4) a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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4. Petitioner shall, within thirty days from the date of this order, file a new and fully
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completed application to proceed in forma pauperis, and a new pleading that clearly demonstrates
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this court’s original jurisdiction and states a potentially cognizable claim for relief.
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5. Failure of petitioner to timely comply with this order will result in a recommendation
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that this action be dismissed.
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Dated: December 8, 2014
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DAD:4
eles2019.misc.scrn.
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