Spears v. El Dorado County Courts et al

Filing 36

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 1/27/21 RECOMMENDING that plaintiff's "request for emergency injunctive relief", construed as a petition for writ of mandamus be denied. Request 26 referred to Judge Troy L. Nunley. Objections due within 14 days.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRIAN SPEARS,

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Plaintiff,

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No. 2:16-CV-2655-TLN-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

EL DORADO COUNTY C.P.S., et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C.

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§ 1983. Before the Court is Plaintiff’s “request for emergency injunctive relief.” ECF No. 26.

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Plaintiff seeks an order compelling the Superior Court of El Dorado County, the El Dorado County

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Public Guardian’s Office, and the guardian of his son Brian Spears, Jr., to facilitate visitation

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between Plaintiff and his son. Id. at 1, 3. Plaintiff moves for injunctive relief under Federal Rule of

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Civil Procedure 65. Id. Because, however, Plaintiff requests this Court do compel a government

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officer and agency to take an action, the Court construes his motion as a motion for writ of

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mandamus. The undersigned United States Magistrate Judge recommends denying the petition for

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a writ of mandamus.

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Federal courts may issue all necessary, appropriate writs in aid of their jurisdiction.

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28 U.S.C. § 1651(a). District courts may also issue writs of mandamus to compel officers,

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employees, and agencies of the United States to undertake a duty owed to a plaintiff. 28 U.S.C. §

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1361. Federal courts, however, cannot issue writs of mandamus compelling action by a state or its

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agencies. See, e.g., Demos v. U.S. Dist. Court for Eastern Dist. of Wash., 925 F.2d 1160, 1161–62

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(9th Cir. 1991) (stating that “to the extent that [petitioner] attempts to obtain a writ in this court to

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compel a state court to take or refrain from some action, the petitions are frivolous as a matter of

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law”); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966); Kelley v. Supreme Court, No.: 19-

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CV-1602-GPC-BLM, 2020 WL 2512191, at *2 (S.D. Ca. May 15, 2020). Federal courts do not

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have power to direct state officers, state courts, or state judicial officers in the performance of their

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duties. See Clark, 366 F.3d at 681; Jones v. Phifer, No. 1:20-cv-00755-EPG-HC, 2020 WL

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4003581, at *1 (E.D. Ca. July 15, 2020); Gougher v. Mnuchin, No. 19-cv-07217-YGR (PR), 2020

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WL 1914889, at *2 (N.D. Ca. Apr. 20, 2020); Kelley, 2020 WL 2512191, at *2.

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The Court concludes that mandamus relief is unavailable. Plaintiff requests that this

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Court direct an officer, agency, and court of the State of California to facilitate visitation between

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Plaintiff and his son. The Court cannot do so. See, e.g., Clark, 366 F.3d at 681; Kelley, 2020 WL

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2512191, at *2. The Court lacks power to direct state officers, agencies, or courts in the performing

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their duties. See, e.g., Demos, 925 F.2d at 1161–62; Gougher, 2020 WL 1914889, at *2

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The undersigned United States Magistrate Judge recommends that Plaintiff’s

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“request for emergency injunctive relief,” construed as a petition for a writ of mandamus, be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after

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

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the Court. Responses to objections shall be filed within 14 days after service of objections. Failure

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to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: January 27, 2021
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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