Dunn v. Bornstein

Filing 13

ORDER OF DISMISSAL. Signed by Judge Phyllis J. Hamilton on 4/3/18. ***Civil Case Terminated. (Certificate of service attached) (kcS, COURT STAFF) (Filed on 4/3/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL DUNN,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-06743-PJH
ORDER OF DISMISSAL

v.
JEFFREY BORNSTEIN,
Defendant.

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Plaintiff, a former federal prisoner, has filed a pro se petition for a writ of

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mandamus. The original petition was dismissed with leave to amend and plaintiff has

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filed an amended petition.
DISCUSSION

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STANDARD OF REVIEW

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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.” Although a complaint “does not

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need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his

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‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. . . . Factual allegations must

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be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough

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facts to state a claim to relief that is plausible on its face.” Id. at 570. The United States

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

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

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factual allegations. When there are well-pleaded factual allegations, a court should

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

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

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United States District Court
Northern District of California

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Plaintiff seeks a writ of mandamus, though the exact nature of his filing is difficult

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to discern. The original filing was dismissed with leave to amend to provide more

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information, but plaintiff’s amended filing is still difficult to understand. Plaintiff had a prior

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federal criminal case, USA v. Dunn, Case No. 93-cr-0270 PJH, from more than 20 years

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ago. Plaintiff states that the prosecutor in that case used evidence that was illegally

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seized and should have been suppressed. Plaintiff seeks this court to compel the state

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court to take some type of action and to order the prosecutor in the 20 year-old case to

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explain certain tactical decisions.

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Federal district courts are without power to issue mandamus to direct state courts,

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

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for a writ of mandamus to compel a state court or official to take or refrain from some

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action is frivolous as a matter of law. See Demos v. U.S. District Court, 925 F.2d 1160,

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1161-62 (9th Cir. 1991) (imposing no filing in forma pauperis order); Clark v. Washington,

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366 F.2d 678, 681 (9th Cir. 1966) (attorney contested disbarment and sought

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reinstatement). A federal district court also lacks authority to issue a writ of mandamus to

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another district court. See Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1393 (9th Cir.

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1987) (citing Lewis v. Green, 629 F. Supp. 546, 553 (D.D.C. 1986)).

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2

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This co cannot issue a wr of manda
ourt
rit
amus to the state cour nor has plaintiff
e
rt

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demonstrated that any other action should be taken. To the extent that he see the
d
o
eks

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rmer prosec
cutor to exp
plain his tac
ctical decisi ons, that re
equest is m
meritless. Because no
for

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am
mount of fur
rther amend
dment would cure the deficiencies described above, this action is
d

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dis
smissed wit
thout leave to amend.
CONCLU
USION

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This action is DISMIS
n
SSED with p
prejudice.

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2.

The clerk shall close this case.
s
t

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S
RED.
IT IS SO ORDER

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Da
ated: April 3, 2018
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United States District Court
Northern District of California

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

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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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MICHAEL DUNN,
M
D

Case No. 1
17-cv-06743
3-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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JE
EFFREY BO
ORNSTEIN,
.
Defendant.

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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.

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That on April 3, 2018, I SERVE a true an correct co
n
ED
nd
opy(ies) of th attached, by placing
he
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
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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ichael Dunn
n
Mi
P.O Box 1468
O.
Lay
ytonville, CA 95454
A

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Da
ated: April 3, 2018
,

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

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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