McCoy v. California Department of Corrections and Rehabilitation

Filing 11

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/7/15 ORDERING that petitioners application for leave to proceed in forma pauperis (ECF Nos. 9 , 10 ) is granted. Further, it is hereby RECOMMENDED that: The p etition for a writ of mandamus be dismissed for lack of jurisdiction, without prejudice to filing an application for a writ of habeas corpus in a new action; and the Clerk be directed to close the case. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

AARON D. McCOY,

12
13
14
15

No. 2:14-cv-2179-TLN-EFB P

Petitioner,
v.

ORDER AND FINDING AND
RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

16

Respondent.

17
18

Petitioner is a state prisoner proceeding without counsel. In a filing directed toward

19

United States District Judge Lawrence K. Karlton, petitioner seeks a “writ of mandate” and

20

“motion for sentence reduction.”1 ECF No. 1. He asks for a “compassionate release” from the

21

custody of the California Department of Corrections and Rehabilitation (CDCR) or in the

22

alternative, that he be transferred to Atascadero State Hospital or another state hospital. He states

23

that his release will save taxpayers money, and that his request is made in response to Judge

24

Karlton’s order directing CDCR to reduce the size of California’s prison population.

25

In a mandamus action, the court can only issue orders against employees, officers or

26

agencies of the United States. See 28 U.S.C. § 1361. Thus, the court cannot issue a writ of

27
28

1

He also seeks leave to proceed in forma pauperis. That request is granted.

1

mandamus commanding state officials to release petitioner or transfer him to a state hospital. See

2

Demos v. United States Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir.

3

1991); Clark v. Washington, 366 F.2d 678, 681-82 (9th Cir. 1966). Therefore, the court cannot

4

afford petitioner the relief he requests. If petitioner contends that he is in custody in violation of

5

the Constitution or laws or treaties of the United States, he may commence a new action by filing

6

an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

7
8
9
10
11

Accordingly, it is hereby ordered that petitioner’s application for leave to proceed in
forma pauperis (ECF Nos. 9, 10) is granted.
Further, it is hereby RECOMMENDED that:
1. The petition for a writ of mandamus be dismissed for lack of jurisdiction, without
prejudice to filing an application for a writ of habeas corpus in a new action; and

12

2. The Clerk be directed to close the case.

13

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

14

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

15

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

16

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

17

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

18

objections shall be served and filed within fourteen days after service of the objections. The

19

parties are advised that failure to file objections within the specified time may waive the right to

20

appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

21

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

22

Dated: May 7, 2015.

23
24
25
26
27
28
2