Senator v. United States of America et al

Filing 4

ORDER OF DISMISSAL. The petition for a writ of mandate is DENIED.. Signed by Judge Vaughn R Walker on 9/22/2008. (cgk, COURT STAFF) (Filed on 9/22/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner incarcerated at the California Men's Colony in San Luis Obispo, has filed a pro se petition for a writ of mandate compelling the United States Securities and Exchange Commission ("SEC") to investigate and account for allegedly missing registered securities. The federal mandamus statute provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 USC 1361. Mandamus relief is only available to compel an officer of the United States to perform a duty if: (1) the petitioner's claim is clear and certain; (2) the duty of the officer is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available. Fallini v Hodel, 783 F2d 1343, 1345 (9th Cir 1986). Mandamus relief is not in order here ) ) ) Petitioner, ) ) vs. ) UNITED STATES SECURITIES AND ) ) EXCHANGE COMMISSION, ) ) Respondent. BRUCE SENATOR, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No C 08-4122 VRW (PR) ORDER OF DISMISSAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because the investigation petitioner seeks is discretionary. See Stang v IRS, 788 F2d 564, 565 (9th Cir 1986) (mandamus writs appropriate only when federal officer, employee or agency owes a "nondiscretionary duty" to petitioner that is so plainly prescribed as to be free from doubt). The petition for a writ of mandate is DENIED. The clerk shall enter judgment in accordance with this order and close the file. SO ORDERED. VAUGHN R WALKER United States District Chief Judge G:\PRO-SE\VRW\OTHER.08\Senator, B1.dismissal.wpd 2

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