Thompson v. Harris et al

Filing 8

ORDER OF DISMISSAL. This action is DISMISSED for failure to state a claim upon which relief may be granted. Signed by Judge Edward J. Davila on 1/17/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 1/17/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 TRAVIS R. THOMPSON, United States District Court Northern District of California 11 Case No. 16-05242 EJD (PR) Plaintiff, 12 ORDER OF DISMISSAL v. 13 14 SCOTT S. HARRIS, et al., Defendants. 15 16 17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against Defendants Scott S. Harris and Erik Fossom, Clerks 20 of the United States Supreme Court. Plaintiff’s motion for leave to proceed in forma 21 pauperis shall be addressed in a separate order. 22 DISCUSSION 23 24 25 A. Standard of Review A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 28 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 4 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims Plaintiff seeks a writ of mandamus pursuant to 28 U.S.C. § 1361, directing 10 Defendants, who are clerks of the United States Supreme Court, to file his petition in the 11 United States District Court Northern District of California 9 High Court “for decision by the justices.” (Compl. at 3.) 12 The federal district courts do not have jurisdiction to issue a writ of mandamus 13 against the clerks or judges of a higher court. See Trackwell v. United States Government, 14 472 F.3d 1242-1243 (10th Cir. 2007) (finding that federal courts are not “agencies” of the 15 Government and therefore § 1361 does not apply to courts or to the court clerks 16 performing judicial functions, and that officers of a court – assisting the court in its judicial 17 functions by performing delegated tasks – should be treated as the court itself in construing 18 § 1361); see also In re Marin, 956 F.2d 339, 340, 294 U.S. App. D.C. 53 (D.C. Cir. 1992) 19 (noting that district court “lacked subject matter jurisdiction to review any decision of the 20 Supreme Court or its Clerk”); Panko v. Rodak, 606 F.2d 168, 171 n.6 (7th Cir. 1979) (“[I]t 21 seems axiomatic that a lower court may not order the judges or officers of a higher court to 22 take an action. [28 U.S.C. § ]1361 seems to grant jurisdiction; but, if read literally, the 23 language of § 1361 would allow a district court to issue mandamus directly against the 24 Justices of the Supreme Court themselves.”). 25 Here, Plaintiff is seeking an order from this Court directing the Clerks of the United 26 States Supreme Court to accept his untimely petition for writ of certiorari. (Compl. at 4.) 27 However as cited above, other district courts and the Tenth Circuit have found that § 28 2 1 1361was not intended to vest a lower federal court with the authority to issue mandamus 2 against an officer of a higher court who is performing delegated tasks and thereby acting 3 on behalf of the Justices themselves. Such an act would be equivalent to issuing 4 mandamus “directly against the Justices… themselves.” Panko, 606 F.2d at 171 n.6. 5 Accordingly, this action must be dismissed for failure to state a claim. 6 CONCLUSION 7 8 9 10 For the reasons state above, this action is DISMISSED for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b). IT IS SO ORDERED. United States District Court Northern District of California 11 12 1/17/2017 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 Order of Dismissal PRO-SE\EJD\CR.16\05242Thompson_dism 26 27 28 3

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