Red v. Dickinson

Filing 4

ORDER DISMISSING PETITION; DENYING AS MOOT 2 MOTION to Appoint Counsel. Signed by Judge Koh on 11/1/2010. The clerk shall close the file. (Attachments: # 1 Certificate of mailing)(lhklc1, COURT STAFF) (Filed on 11/1/2010)

Red v. Dickinson

Doc. 4

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 GEORGE RED, JR., v. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) Case No.: 10-CV-04730-LHK ORDER DISMISSING PETITION; DENYING MOTION TO APPOINT COUNSEL AS MOOT

KATHLEEN DICKINSON, Warden of the California Medical Facility, Respondent.

Petitioner George Red, Jr., is a California state prisoner proceeding pro se. On October 20, 2010, he initiated this action by filing a petition for a writ of mandate ordering Respondent to recall Petitioner's sentence and recommend resentencing and providing other relief. Petitioner also moved for appointment of counsel. For the reasons set forth below, the Petition is DISMISSED, and Petitioner's motion for appointment of counsel is DENIED as moot. I. Legal Standard Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); In re Arizona, 528 F.3d 652, 657 (9th Cir. 2008). A district court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if it "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Under § 1915A, when 1
Case No.: 10-CV-04730-LHK ORDER DISMISSING PETITION; DENYING MOTION TO APPOINT COUNSEL AS MOOT
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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

determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Additionally, courts must construe pro se pleadings liberally. Id. II. Discussion Petitioner seeks a writ of mandate ordering the Warden of the California Medical Facility, where Petitioner is incarcerated, to recall Petitioner's sentence. Compl. at 1. The federal mandamus statute grants district courts jurisdiction "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Mandamus jurisdiction exists when (1) a plaintiff has a clear right to relief; (2) a defendant has a duty to act that is "ministerial and so plainly prescribed as to be free from doubt"; and (3) no other adequate remedy is available. Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390, 392 (9th Cir. 1982) (quoting Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir.1970)). Here, the Court lacks subject matter jurisdiction over the Petition because Respondent is not "an officer or employee of the United States or any agency thereof," but rather an officer or employee of the state of California. 28 U.S.C. § 1361; see also, e.g., Williams v. Supreme Court of California, No. C 10-3834, 2010 WL 4065409, at *1 (N.D. Cal. 2010); Newton v. Poindexter, 578 F. Supp. 277, 279 (E.D. Cal. 1984). Because the Court lacks mandamus jurisdiction over a petition seeking to compel action by a state employee, the Court concludes that the Petition in this case fails to state a claim upon which relief may be granted. Petitioner's mandamus remedy, if any, lies in state court.1 III. Conclusion For the foregoing reasons, the Court DISMISSES the Petition pursuant to 28 U.S.C. § 1915A(a) for failure to state a claim upon which relief may be granted. Additionally, the Court
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The Court notes, in addition, that to the extent Petitioner seeks to challenge the legality or duration of his confinement, a petition for habeas corpus brought in state court may be the proper mechanism for his challenge. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); see also People v. Picklesimer, 48 Cal. 4th 330, 339, 226 P. 3d 348 (2010) (distinguishing a petition for habeas corpus, which may be filed by a prisoner still in custody, from a petition for writ of mandate, which may be filed by individuals released from custody). 2

Case No.: 10-CV-04730-LHK ORDER DISMISSING PETITION; DENYING MOTION TO APPOINT COUNSEL AS MOOT

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

DENIES as moot Petitioner's motion for appointment of counsel. The clerk shall close the file and terminate any pending motions. IT IS SO ORDERED.

Dated: November 1, 2010

_________________________________ LUCY H. KOH United States District Judge

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Case No.: 10-CV-04730-LHK ORDER DISMISSING PETITION; DENYING MOTION TO APPOINT COUNSEL AS MOOT