Wright v. U.S. Department of Education et al
Filing
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ORDER ON MISCELLANEOUS MOTIONS by Judge Claudia Wilken granting 3 Motion for Leave to Proceed in forma pauperis; denying 5 Motion for miscellaneous relief. (Attachments: # 1 Certificate/Proof of Service) (jebS, COURT STAFF) (Filed on 4/4/2016)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FRANKLIN H. WRIGHT,
Plaintiff,
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ORDER ON
MISCELLANEOUS
MOTIONS
v.
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No. C 16-1371 CW
UNITED STATES DEPARTMENT OF
EDUCATION, et al.,
(Docket Nos. 3 &
5)
Defendants.
________________________________/
United States District Court
For the Northern District of California
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The Court considers Plaintiff Franklin H. Wright's motion for
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leave to proceed in forma pauperis, Plaintiff's motion to resolve
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cases and Plaintiff's request for counsel.
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application to proceed in forma pauperis and DISMISSES Plaintiff's
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complaint without prejudice.
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motions.
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I.
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The Court GRANTS the
The Court DENIES Plaintiff's other
Application to Proceed In Forma Pauperis
A court may authorize a plaintiff to prosecute an action in
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federal court without prepayment of fees or security if the
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plaintiff submits an affidavit showing that he or she is unable to
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pay such fees or provide such security.
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Plaintiff has submitted the required documentation, and it appears
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from his applications that his assets and income are insufficient
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to enable him to prosecute these actions.
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application to proceed without the payment of the filing fee is
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GRANTED (Docket No. 3).
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//
See 28 U.S.C. § 1915(a).
Accordingly, the
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II.
Complaint
The Court’s grant of Plaintiff's application to proceed in
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forma pauperis, however, does not mean that he may continue to
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prosecute his complaint.
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dismiss a case filed without the payment of the filing fee
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whenever it determines that the action “(i) is frivolous or
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malicious; (ii) fails to state a claim on which relief may be
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granted; or (iii) seeks monetary relief against a defendant who is
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immune from such relief."
A court is under a continuing duty to
28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
United States District Court
For the Northern District of California
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Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal
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on the merits, but rather an exercise of the court's discretion
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under the in forma pauperis statute, the dismissal does not
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prejudice the filing of a paid complaint making the same
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allegations.
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Denton v. Hernandez, 504 U.S. 25, 32 (1992).
Plaintiff filed this action requesting the Court to issue a
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writ of mandamus to compel John King, acting Secretary of the
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United States Department of Education (Department), or someone
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else within the Department to appear in person to answer
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Plaintiff's questions and to "present to Plaintiff the results of
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the investigation as to his FTCA claim letter."
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Complaint at 4.
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letter filed under the F.T.C.A." that was mailed to the Department
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on or around July 3, 2015.
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letter "suggests that plaintiff's grades and test scores had been
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altered, perhaps with the knowledge and authority of the . . .
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Department . . . itself."
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Department was required to investigate his claim and owes
Docket No. 1,
Attached to Plaintiff's Complaint is a "claim
Id. at 2.
Id.
Among other things, the
Plaintiff's theory is that the
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Plaintiff a fiduciary duty that requires it to share with
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Plaintiff the results of its investigation.
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A writ of mandamus may be granted when (1) "the plaintiff's
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claim is clear and certain"; (2) the duty is "ministerial and so
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plainly prescribed as to be free from doubt"; and (3) "no other
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adequate remedy is available."
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52 F.3d 1499, 1508 (9th Cir. 1995).
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mandamus lies within the discretion of the trial court," even
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where a plaintiff satisfies these three requirements.
United States District Court
For the Northern District of California
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Or. Nat. Res. Council v. Harrell,
The "extraordinary remedy of
Id.
Here, the Complaint's allegations do not sufficiently allege
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facts that would satisfy the requirements for granting mandamus.
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Although Plaintiff recounts general propositions regarding
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fiduciary relationships, Plaintiff and Defendants are not in a
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fiduciary relationship.
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generally describes fiduciary duties and 28 U.S.C. § 530B, which
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describes general ethical standards for Government attorneys.
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These legal references are insufficient to allege a fiduciary
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relationship.
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that creates a duty to investigate Plaintiff's letter or a duty to
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share results with Plaintiff.
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not discuss any other potential remedy.
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Plaintiff quotes California case law that
In addition, Plaintiff cites no legal authority
Finally, Plaintiff's allegations do
For these reasons, the Court finds that Plaintiff has failed
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to state a claim on which relief may be granted.
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dismisses the Complaint without prejudice.
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The Court
III. Other Motions
Because the Court dismisses the Complaint, it DENIES
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Plaintiff's motion "for an in-person hearing to resolve all
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related cases pending in both State and District Courts to be
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heard in person."1
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Court also DENIES Plaintiff's request for counsel under 28 U.S.C.
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§ 1915(e)(1).
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Cir. 1965) ("It is true that the appointment of counsel in a civil
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case is, as is the privilege of proceeding in forma pauperis, a
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matter within the discretion of the district court.
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privilege and not a right.").
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IV.
Docket No. 5, Motion to Resolve at 1.
The
See United States v. Madden, 352 F.2d 792, 793 (9th
It is a
Conclusion
In sum, the Court GRANTS Plaintiff's application to proceed
United States District Court
For the Northern District of California
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in forma pauperis (Docket No. 3), DENIES Plaintiff's motion to
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resolve cases and request for counsel (Docket No. 5) and DISMISSES
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Plaintiff's Complaint without prejudice.
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amend his Complaint, he must do so within thirty days of this
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order.
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action with prejudice pursuant to Federal Rule of Civil Procedure
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41(b).
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If Plaintiff chooses to
Failure to timely amend shall result in dismissal of this
IT IS SO ORDERED.
Dated: April 4, 2016
CLAUDIA WILKEN
United States District Judge
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The Court has reviewed Plaintiff's Notice of Request for
Hearing, filed in case number 16-513 at docket number 15. This
document does not persuade the Court otherwise.
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