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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRAVIS R. THOMPSON,
United States District Court
Northern District of California

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Case No. 16-05242 EJD (PR)

Plaintiff,

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ORDER OF DISMISSAL

v.

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SCOTT S. HARRIS, et al.,
Defendants.

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Plaintiff, a California state prisoner, filed the instant pro se civil rights action

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pursuant to 42 U.S.C. § 1983 against Defendants Scott S. Harris and Erik Fossom, Clerks

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of the United States Supreme Court. Plaintiff’s motion for leave to proceed in forma

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pauperis shall be addressed in a separate order.

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DISCUSSION

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A.

Standard of Review
A federal court must conduct a preliminary screening in any case in which a

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

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cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

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upon which relief may be granted or seek monetary relief from a defendant who is immune

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from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally

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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

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was committed by a person acting under the

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color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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B.

Plaintiff’s Claims
Plaintiff seeks a writ of mandamus pursuant to 28 U.S.C. § 1361, directing

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Defendants, who are clerks of the United States Supreme Court, to file his petition in the

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United States District Court
Northern District of California

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High Court “for decision by the justices.” (Compl. at 3.)

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The federal district courts do not have jurisdiction to issue a writ of mandamus

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against the clerks or judges of a higher court. See Trackwell v. United States Government,

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472 F.3d 1242-1243 (10th Cir. 2007) (finding that federal courts are not “agencies” of the

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Government and therefore § 1361 does not apply to courts or to the court clerks

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performing judicial functions, and that officers of a court – assisting the court in its judicial

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functions by performing delegated tasks – should be treated as the court itself in construing

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§ 1361); see also In re Marin, 956 F.2d 339, 340, 294 U.S. App. D.C. 53 (D.C. Cir. 1992)

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(noting that district court “lacked subject matter jurisdiction to review any decision of the

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Supreme Court or its Clerk”); Panko v. Rodak, 606 F.2d 168, 171 n.6 (7th Cir. 1979) (“[I]t

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seems axiomatic that a lower court may not order the judges or officers of a higher court to

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take an action. [28 U.S.C. § ]1361 seems to grant jurisdiction; but, if read literally, the

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language of § 1361 would allow a district court to issue mandamus directly against the

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Justices of the Supreme Court themselves.”).

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Here, Plaintiff is seeking an order from this Court directing the Clerks of the United

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States Supreme Court to accept his untimely petition for writ of certiorari. (Compl. at 4.)

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However as cited above, other district courts and the Tenth Circuit have found that §

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1361was not intended to vest a lower federal court with the authority to issue mandamus

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against an officer of a higher court who is performing delegated tasks and thereby acting

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on behalf of the Justices themselves. Such an act would be equivalent to issuing

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mandamus “directly against the Justices… themselves.” Panko, 606 F.2d at 171 n.6.

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Accordingly, this action must be dismissed for failure to state a claim.

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CONCLUSION

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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

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1/17/2017
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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Order of Dismissal
PRO-SE\EJD\CR.16\05242Thompson_dism

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