Brand v. People of the State of California

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 05/02/17 RECOMMENDING that petitioner's 1 petition for issuance of a writ of mandate be denied and this action be dismissed for lack of jurisdiction; referred to Judge John A. Mendez; Objections to F&R due within 20 days. (Benson, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES R. BRAND, 12 13 14 No. 2:16-cv-2550-JAM-CMK-P Petitioner, vs. FINDINGS AND RECOMMENDATIONS PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 / Petitioner, a pretrial detainee in the Rio Consumnes Correctional Center, is 18 proceeding pro se. He has filed a pro se petition for a writ of mandamus, requesting this court 19 issue an order requiring the Sacramento County Superior Court hear his motions. 20 Under 28 U.S.C. § 1651(a), all federal courts may issue writs “in aid of their 21 respective jurisdictions. . .” In addition, the district court has original jurisdiction under 28 22 U.S.C. § 1361 to issue writs of mandamus. That jurisdiction is limited, however, to writs of 23 mandamus to “compel an officer or employee of the United States or any agency thereof to 24 perform a duty. . .” 28 U.S.C. § 1361 (emphasis added). It is also well-established that, with 25 very few exceptions specifically outlined by Congress, the federal court cannot issue a writ of 26 mandamus commanding action by a state or its agencies. See e.g. Demos v. U.S. Dist. Court for 1 1 2 Eastern Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991). Here, petitioner is not requesting any action on behalf of any officer or employee 3 of the United States or an agency thereof. Plaintiff is requesting this court to compel the 4 Sacramento County Superior Court to hear motions related to criminal proceedings against him. 5 This court has no jurisdiction to do so under 28 U.S.C. § 1361. 6 7 Based on the foregoing, the undersigned recommends that petitioner’s petition for issuance of a writ of mandate be denied and this action be dismissed for lack of jurisdiction. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court. The document should be captioned “Objections to Magistrate Judge's 12 Findings and Recommendations.” Failure to file objections within the specified time may waive 13 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 DATED: May 2, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 2

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