Ke v. McCoy

Filing 3

ORDER of Dismissal. Signed by Judge Edward M. Chen on 11/30/2017. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 11/30/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In Re

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HUI LIAN KE,

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Plaintiff.

Case No. 17-cv-04778-EMC
Case No. 17-cv-04787-EMC
Case No. 17-cv-04825-EMC
ORDER OF DISMISSAL

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For the Northern District of California

United States District Court

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Hui Lian Ke, also known as Lily Ko, an inmate at the Santa Clara County Jail, has filed

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more than thirty civil actions this year. This order addresses three actions she filed against state

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court judges while she was confined in county jail.

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These three actions are now before the Court for review pursuant to 28 U.S.C. § 1915A,

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which requires the Court to do a preliminary screening of any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. In its review

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the Court must identify any cognizable claims, and dismiss any claims which are frivolous,

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malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a

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defendant who is immune from such relief. See id. at 1915A(b)(1),(2).

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These three actions seek to prevent three judges of the Santa Clara County Superior Court

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from acting in state court cases that were or are pending. In Ke v. Jones, Case No. 17-4778 EMC,

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Plaintiff seeks a writ of mandamus preventing Judge Rise Pichon Jones from acting in several

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cases that are or were pending in Santa Clara County Superior Court. Plaintiff also demands the

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return of her two children and her release from jail. In Ke v. Schwarz, Case No. 17-4787 EMC,

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Plaintiff has captioned the case as being filed in the “Superior Ecclesiastical Court - Ninth Circuit

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Court, California.” She seeks a “writ of inhibition” “forbidding Judge [Schwarz] from proceeding

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in [two superior court cases] for the sins she committed.” Docket No. 1 at 1 in Case No. 17-cv-

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4878 EMC.1 In Ke v. McCoy, Case No. 17-cv-4825 EMC, Plaintiff has captioned the case as

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being filed in the “Superior Ecclesiastical Court - Ninth Circuit Court, California.” She seeks a

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“writ of inhibition” “forbidding Judge [McCoy] from proceeding in [two superior court cases] for

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the sins she committed.” Docket No. 1 at 1 in Case No. 17-cv-4825 EMC.
Plaintiff has captioned two of these actions as being filed in an ecclesiastical court.2 The

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spiritual matters.” D. v. D. 20 A.2d 139, 140 (Del. 1941). This Court is not an ecclesiastical

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Court, the Santa Clara County Superior Court is not an ecclesiastical court, Plaintiff is not an

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ecclesiastical court, and Plaintiff does not present any document from an ecclesiastical court.

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There being no ecclesiastical court in the picture, Plaintiff‟s petitions for writ of inhibition (as in a

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For the Northern District of California

term “ecclesiastical courts” is a “generic name for certain Courts having cognizance mainly of

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United States District Court

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writ issuing from a superior ecclesiastical court, see footnote 1) are plainly meritless. In the

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interest of justice, the Court will liberally construe the two petitions for writ of inhibition to be

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petitions for writ of prohibition, as she is seeking an order restraining judges from adjudicating

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two cases.
Plaintiff is not entitled to have this Court issue a writ of mandamus, mandate or prohibition

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under California law. The terms “mandate” and “mandamus” are interchangeable. See, e.g., Cal.

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Code Civ. Proc. § 1084 (“The writ of mandamus may be denominated a writ of mandate”). A writ

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of mandate “may be issued by any court to any inferior tribunal . . . or person, to compel the

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performance of an act which the law specially enjoins.” Cal. Code Civ. Proc. § 1085. A writ of

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prohibition “arrests the proceedings of any tribunal . . . or person exercising judicial functions,

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when such proceedings are without or in excess of the jurisdiction of such tribunal . . . or person.”

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Cal. Penal Code § 1102. California's writ of mandate and writ of prohibition statutes, Cal. Code,

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Black‟s Law Dictionary provides this definition: “Inhibition. In Ecclesiastical law. A writ
issuing from a superior ecclesiastical court, forbidding an inferior judge to proceed further in a
cause pending before him. In this sense it is closely analogous to the writ of prohibition at
common law.” Black’s Law Dictionary 922 (rev. 4th ed. 1968) (emphasis in source).
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Plaintiff appears to be working with a book of writs, as she has requested writs of mandamus,
prohibition, certiorari, error coram nobis and habeas corpus in various cases she has filed in this
Court.
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Civ. Proc. §§ 1085 and 1102, are procedural rules that do not apply to a federal court. This court

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cannot entertain a petition for a writ of mandate, mandamus or prohibition under California Code

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of Civil Procedure §§ 1085 or 1102 when there is no other basis for federal subject matter

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jurisdiction. See Hill v. Cnty. of Sacramento, 466 F. App‟x 577, 579 (9th Cir. 2012) (“The district

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court also correctly rejected Hill‟s claim for a writ of mandate under Cal. Civ. Proc. Code § 1085

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to compel the defendants to comply with federal regulations. . . . Cal. Civ. Proc. Code § 1085

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authorizes only state courts to issue writs of mandate.”); San Francisco Apartment Ass’n v. City &

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Cnty. of San Francisco, 142 F. Supp. 3d 910, 917 n.2 (N.D. Cal. 2015) (“§ 1085 is a „procedural

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mechanism,‟ not a substantive claim. (Citation omitted.) Moreover it does not apply in federal

“claim for a writ of mandate is a state law claim. Although the asserted bases for issuance of such

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For the Northern District of California

court”); Pacific Bell Tel. Co. v. City of Walnut Creek, 428 F. Supp. 2d 1037 (N.D. Cal. 2006)(the

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United States District Court

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writ are the City‟s alleged violations of both federal and state law, the claim remains a state law

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claim”).

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Plaintiff also is not entitled to relief under the federal mandamus statute because that

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statute reaches only federal officers and employees, not state officers and employees. See 28

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U.S.C. § 1361 (“The district courts shall have original jurisdiction of any action in the nature of

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mandamus to compel an officer or employee of the United States or any agency thereof to perform

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a duty owed to the plaintiff.”) A petition for a writ of mandamus “to compel a state court or

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official to take or refrain from some action is frivolous as a matter of law.” Demos v. U.S. District

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Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991) (imposing no filing in forma pauperis order);

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Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no application to state

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officers or employees). Plaintiff cannot obtain a federal writ of mandamus compelling the Santa

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Clara County Superior Court judges to take action or refrain from taking action in cases pending

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in that court. Plaintiff‟s petitions in these three actions have no legal merit.

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Plaintiff mentions in her petitions that she wants to be released from custody. If Plaintiff

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wants to challenge the lawfulness of her current custody, the exclusive method by which she may

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do so in federal court is by filing a petition for writ of habeas corpus. See Preiser v. Rodriguez,

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411 U.S. 475, 500 (1973). The Court will not construe any of the present actions as a petition for
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writ of habeas corpus because Plaintiff already has several petitions for writ of habeas corpus

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pending. See Ke v. Davis, 17-cv-4826 VC; Ko v. Fleming, 17-cv-5178 VC; Ko v. Fleming, 17-cv-

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5179 VC.

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For the foregoing reasons, these actions are DISMISSED. Leave to amend will not be

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granted because it would be futile: there do not appear to be any additional facts that could be

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alleged that would give this Court the power to compel state court judges to adjudicate or refrain

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from adjudicating cases pending in the state court.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: November 30, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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