Marston v. Rodriguez-Mendoza

Filing 4

REPORT AND RECOMMENDATIONS that the Court Construe Marston's 1 "Appeal" as a Petition for Writ of Mandamus and that it be DISMISSED. Signed by Judge Andrew W. Austin. (klw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
CATHERINE L. MARSTON Ph.D
#1306127

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V.
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AMALIA RODRIGUEZ-MENDOZA,
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Travis County District Clerk in her Official §
Capacity
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A-12-CA-254-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner’s “Appeal” in which she is requesting a writ of mandamus.
Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time she filed her request for a writ of mandamus, Petitioner was confined in the
Murray Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Petitioner requests this Court to order the Travis County District Clerk to provide her with her
transcripts, the court’s official record, and other documents, photos and evidence related to her
convictions. Petitioner explains the Texas Court of Criminal Appeals has refused to order the Travis
County Clerk to do so.

DISCUSSION AND ANALYSIS
Although the writ of mandamus was abolished by FED . R. CIV . P. 81(b), federal courts may
issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law. 28 U.S.C. § 1651. Actions in the nature of mandamus are provided
for in 28 U.S.C. § 1361, which states as follows:
The district courts shall have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.
Federal district courts do not have jurisdiction to issue the writ against a state actor or agency. See
generally Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973); accord,
Noble v. Cain, 123 Fed. Appx. 151 (5th Cir. Feb.16, 2005) (available at 2005 WL 361818) (citing
Moye to hold that mandamus relief is not available to federal courts to direct state officials in the
performance of their duties and function). As such, mandamus relief is not available to compel or
direct the actions of state officials or other non-federal employees. Davis v. Lansing, 851 F.2d 72,
74 (2d Cir. 1988); Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th Cir.
1969). Thus, Petitioner’s request cannot be granted, and she does not appear to be seeking any
additional relief.
RECOMMENDATION
It is therefore recommended that Petitioner’s “Appeal,” construed as a request for writ of
mandamus, be dismissed without prejudice for want of jurisdiction.
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
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(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 27th day of March, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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