Brisette v. California Supreme Court et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 12/24/15. Amended complaint must be filed no later than 1/29/16. (jebS, COURT STAFF) (Filed on 12/24/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHILLIP BRISETTE,

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Plaintiff,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.

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CALIFORNIA SUPREME COURT, et al.,

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Defendants.

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United States District Court
Northern District of California

Case No. 15-cv-05578-PJH

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §

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1983. He has been granted leave to proceed in forma pauperis.
DISCUSSION

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I.

STANDARD OF REVIEW
Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

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(citations omitted). Although in order to state a claim a complaint “does not need detailed

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

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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United States District Court
Northern District of California

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

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff seeks an order compelling a California State Court to conduct a hearing

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regarding his state habeas petition for a prison disciplinary finding.
The federal mandamus statute provides: "The district courts shall have original

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jurisdiction of any action in the nature of mandamus to compel an officer or employee of

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the United States or any agency thereof to perform a duty owed to the plaintiff." 28

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U.S.C. § 1361.

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However, this court has no authority to take the actions requested by plaintiff by

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way of a writ of mandamus. Federal courts are without power to issue mandamus to

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direct state courts, state judicial officers, or other state officials in the performance of their

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duties. A petition for mandamus to compel a state court or official to take or refrain from

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some action is frivolous as a matter of law. See Demos v. U.S. District Court, 925 F.2d

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1160, 1161-62 (9th Cir.), cert. denied, 111 S. Ct. 1082 (1991); see also In re Campbell,
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264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus that would

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order state trial court to give plaintiff access to certain trial transcripts which he sought in

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preparation for filing state post-conviction petition; federal court may not, as a general

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rule, issue mandamus to a state judicial officer to control or interfere with state court

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litigation).
Plaintiff brought habeas petitions in the state superior court, court of appeal, and

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supreme court. No hearings were scheduled in any of those cases and all petitions were

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denied. Plaintiff seeks to have the denials vacated and a hearing held in state court.

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Pursuant to the authority above this court cannot compel a state court to have a hearing.

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The complaint will be dismissed but plaintiff will be provided one opportunity to amend.1

United States District Court
Northern District of California

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CONCLUSION

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1. The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed no later than January

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29, 2016, and must include the caption and civil case number used in this order and the

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words AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the original complaint, plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may
not incorporate material from the original complaint by reference.
2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the

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court informed of any change of address by filing a separate paper with the clerk headed
“Notice of Change of Address,” and must comply with the court's orders in a timely
fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b).

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Depending on the circumstances of the disciplinary hearing and the punishment, plaintiff
may be able to challenge the finding in a habeas petition. Plaintiff would need to file the
petition in the district where he is confined, which at this time is the Eastern District of
California.
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IT IS SO ORDER
S
RED.
Da
ated: Decem
mber 24, 20
015

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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United States District Court
Northern District of California

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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PH
HILLIP BRI
ISETTE,

Case No. 1
15-cv-05578
8-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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CALIFORNIA SUPREM COURT, et al.,
A
ME
Defendants
s.

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.
That on December 24, 2015, I SERVED a t
n
S
true and corr copy(ies of the atta
rect
s)
ached, by
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Phi
illip Brisette ID: P44080
e
CS Solano 8SP
-250 Low
P.O Box 4000
O.
0
Va
acaville, CA 95696-4000
0

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ated: Decemb 24, 2015
ber
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Da

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
Je Ballard, Deputy Cler to the
ean
rk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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