Storm v. Newsom et al

Filing 13

***FILED IN ERROR, PLEASE DISREGARD*** (ads, COURT STAFF) (Filed on 11/14/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DIMITRI Z. STORM,

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Plaintiff,

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v.

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United States District Court
Northern District of California

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

GAVIN NEWSOM, et al.,

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Defendants.

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Case No. 23-cv-00889-AMO (PR)

I.

INTRODUCTION
Plaintiff Dimitri Z. Storm, a pro se state prisoner currently incarcerated at the California

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Substance Abuse Treatment Facility (“SATF”), has filed a document entitled, “Petition for Writ of

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Mandate.” Dkt. 1. Storm’s request for leave to proceed in forma pauperis will be granted in a

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separate Order. Dkt. 5.

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II.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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United States District Court
Northern District of California

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III.

DISCUSSION
Storm has filed a document entitled, “Petition for Writ of Mandate,” though the exact

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nature of his filing is difficult to discern. See Dkt. 1. The petition is handwritten, single-spaced

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and twenty-pages long. The Court notes that Storm’s handwriting is difficult to decipher, and his

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use of many unnecessary punctuations and capitalizations make it very difficult to understand his

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petition.1 See id.

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As an initial matter, while the top caption reads “U.S. District Court for Northern

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California San Francisco Division,” it seems that Storm does not realize that he is filing a petition

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in federal court because he addresses the instant filing as “Petition for Writ of Mandamus For: The

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Honorable Presiding Justices of: The California Supreme Court.” Id. at 1.2 He names the

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following as Respondents: Governor Gavin Newsom; Attorney General Robert Bonta; Former

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Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) Kathleen

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Allison. Id. Under “Grounds for Relief,” Storm states in a conclusory manner that

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“RESPONDENTS: Have Failed and/or refused Performance of the[ir] Designated Office>> ~

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The Court will be directing Storm to amend his claims below, and thus it instructs him to
strive to use correct grammar and punctuation in his future filings. The Court also instructs him to
submit type-written filings, if possible.
Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by Storm.
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An[d] According ~ (Ministerial Acts) ~ An[d] ~ (Legal Duties)”3 and “~ Failed in that Duty. For

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Performance Fulfillment of . . .” and then he fills half a page worth of a variety of state laws, such

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as “The California Public Records Act,” and sections from the CDCR’s Department Operations

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Manual. Id. at 3. Under his “Statement of Facts” section, Storm begins by stating again in a

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conclusory fashion as follows:

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At Present An[d] of Date: 6//22//2022:=>there has been a systematic
repeated pattern ~ of Severe critical violations of Respondent Offices
or Staff of the CDCR>> ~ [CDCR] For Performance of required>> ~
(Ministerial Acts) that constitutes “A” Violation of [Public Right]:
of—>> >> ~ (The People of the State of California) Specifically
concerning Legal Obligation For>> ~ Response: when Petitioned
with: (California Public Record Act) Requests An[d]>>CDCR: (GA22 Request for Interview Form) ~ (Administrative Remedy) ~
Requests>> ~ that threatens: (the Security and Safety) of (CDCRStaff) the Institutions and>> ~ inmates An[d] I (Inter Alia)//. . .
Agent://

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Id. at 4. He then continues for seven pages and lists various alleged violations from December 30,

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2020 to August 28, 2021. Id. at 4-10. Again, the Court struggles with discerning Storm’s claims

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and deciphering his handwriting, but he seems to be alleging various violations that include:

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receiving no response to his December 30, 2020 attempts “to safely report certain ~ illegal

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activities of SATF-CDCR-STAFF in violation of the California>> Governors Orders and the

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President[’]s Mandates Concerning COVID-19 response”; retaliation beginning on or about

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March 12, 2021 “[f]rom corrupt CDCR-Staff and Officers for Contacting the CDCR-OIA-SAC-

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HQ>> ~ i.e. (The Office of Internal Affairs)”; and a lack of response “when reporting a: (SAR) =

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(Suspicious Activity Report)” on or about August 28, 2021. Id. Lastly, Storm’s “Prayer for

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Relief” section is five-pages long, but the Court is not clear on exactly what relief he seeks. Id. at

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13-17. For example, he writes:

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United States District Court
Northern District of California

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Henceforth Petitioner Prays: That this Court on Hearing this Petition
An[d] ~ on consideration of any return filed thereof: >> // >> that
“A”: (Peremptory writ:) ~ Per: (Code of Civil Procedure § 10384): Be

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The Court has quoted directed from Storm’s filing so as to display his use of unnecessary
punctuations and capitalizations.
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Under California Code of Civil Procedure § 1038, certain defendants in civil proceedings
under the Government Claims Act (Cal. Gov. Code, § 810 et seq.) may recover defense costs,
including reasonable attorney’s fees, if the court determines the proceeding was not brought “with
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issued ~ via:(The California Supreme Court): Justices/Commanding
respondent to ~ Immediately Institute “A”: (Probe) into these matters
via (The Governor[’]s Office): Thru “A” Launching of “A” Official
(Investigation) ~ An ~ (Inquiry) of which: (The California Supreme
Court): will oversee >> ~ Thru “A” (Internal Security Audit): of: (the
[CDCR]) . . . .

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Id. at 13.
Federal district courts are without power to issue mandamus to direct state courts, state

United States District Court
Northern District of California

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judicial officers, or other state officials in the performance of their duties. A petition for a writ of

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mandamus to compel a state court or official to take or refrain from some action is frivolous as a

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matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991)

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(imposing no filing in forma pauperis order); Clark v. Washington, 366 F.2d 678, 681 (9th Cir.

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1966) (attorney contested disbarment and sought reinstatement). A federal district court also lacks

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authority to issue a writ of mandamus to another district court. See Mullis v. U.S. Bankruptcy

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Court, 828 F.2d 1385, 1393 (9th Cir. 1987) (citing Lewis v. Green, 629 F. Supp. 546, 553 (D.D.C.

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1986)).
The petition is DISMISSED with leave to amend, and Storm will be provided one

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opportunity to amend to address the legal standards set forth above. Storm should also provide

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more information concerning the relief he seeks. Finally, Storm seems to be complaining of

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various problems during his incarceration at SATF, which is where he is still currently

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incarcerated. Because SATF is located within the venue of the Eastern District of California,

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these claims are DISMISSED without prejudice to Storm refiling them in a new civil rights action

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in the United States District Court for the Eastern District of California. See In re Hall, 939 F.2d

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802, 804 (9th Cir. 1991) (dismissal on venue grounds without prejudice).

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IV.

CONCLUSION

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For the foregoing reasons, the Court orders:

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1.

Storm’s claims relating to all problems during his incarceration at SATF are

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DISMISSED WITHOUT PREJUDICE to Storm refiling them in a new civil rights action in the

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United States District Court for the Eastern District of California.

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reasonable cause and in the good faith belief that there was a justifiable controversy under the
facts and law.” Cal. Code Civ. Proc., § 1038.
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2.

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(28) days from the date of this Order to file an Amended Complaint that addresses the legal

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standards set forth above. Storm should also provide more information concerning the relief he

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seeks. Storm is instructed to submit type-written filings, if possible, and to strive to use correct

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grammar and punctuation in his future filings.
He must indicate the case number for this action—Case No. 23-cv-00889-AMO (PR)—on

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United States District Court
Northern District of California

The petition is DISMISSED with leave to amend. Storm shall have twenty-eight

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the form, clearly label the complaint “Amended Complaint,” and complete all sections of the

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form. Because the Amended Complaint completely replaces all previously-filed complaints, he

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must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262

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(9th Cir.), cert. denied, 506 U.S. 915 (1992). He may not incorporate material from his original

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filing by reference.
Storm’s failure to file his Amended Complaint by the twenty-eight-day deadline will

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result in the dismissal of this action without prejudice.
3.

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It is the plaintiff’s responsibility to prosecute this case. The plaintiff must keep the

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Court informed of any change of address and must comply with the Court’s orders in a timely

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fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address

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changes while an action is pending must promptly file a notice of change of address specifying the

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new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when:

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(1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable,

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and (2) the Court fails to receive within sixty days of this return a written communication from the

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pro se party indicating a current address. See L.R. 3-11(b).
4.

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along with his copy of this Order.
IT IS SO ORDERED.

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The Clerk of the Court shall send the plaintiff a blank civil rights complaint form

Dated:

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ARACELI MARTÍNEZ-OLGUÍN
United States District Judge

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