Mitchell v. Curry

Filing 5

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 8/26/10. (lrc, COURT STAFF) (Filed on 8/26/2010)

Mitchell v. Curry

Doc. 5

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. B. CURRY, Respondent. / GREGORY MITCHELL, Petitioner, No. C 10-02082 SBA (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

This action was opened when Petitioner, who is proceeding pro se, filed a completed habeas corpus form; therefore, it was opened as a habeas action. He also seeks leave to proceed in forma pauperis. Petitioner claims that on November 4, 2008, he filed a temporary restraining order (TRO) in the Monterey County Superior Court relating to prison officials denying him access to the courts. He alleges that the state superior court is "in contempt of its rules of court by not responding to its own rules to answer the TRO." (Pet. at 6.) It seems that Petitioner is asking this Court to compel, or issue mandamus to, the state superior court to take action. Federal district courts are without power to issue mandamus to direct state courts, state judicial officers or other state officials in the performance of their duties. A petition for a writ of mandamus to compel a state court or official to take or refrain from some action is frivolous as a matter of law. Demos v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991); see Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (attorney contested disbarment and sought reinstatement); Dunlap v. Corbin, 532 F. Supp. 183, 187

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(D. Ariz. 1981) (plaintiff sought order from federal court directing state court to provide speedy trial), aff'd without opinion, 673 F.2d 1337 (9th Cir. 1982); Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (federal mandamus statute has no application to state officers or employees); see also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus that would order state trial court to give petitioner access to certain trial transcripts which he sought in preparation for filing state post-conviction petition; federal court may not, as a general rule, issue mandamus to a state judicial officer to control or interfere with state court litigation). Petitioner's claim is not cognizable in federal court. His remedy, if any, lies in state court. Because amendment would be futile, this action is DISMISSED with prejudice. CONCLUSION For the foregoing reasons, the Court orders as follows: The action is DISMISSED with prejudice and without leave to amend. Petitioner's application to proceed in forma pauperis is GRANTED. The Clerk of the Court shall terminate all pending motions, enter judgment and close the file. This Order terminates Docket no. 4. IT IS SO ORDERED. DATED: 8/26/10 SAUNDRA BROWN ARMSTRONG United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

GREGORY MITCHELL, Plaintiff, v. BENNY CURRY et al, Defendant. /

Case Number: CV10-02082 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 26, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Gregory Mitchell D-44205 Correctional Training Facility P.O. Box 689 Soledad, CA 93960 Dated: August 26, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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