Wright v. U.S. Department of Education et al

Filing 10

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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