Moore v. Durkan

Filing 4

ORDER TO SHOW CAUSE by Judge Benjamin H Settle re: additional briefing why petition should not be dismissed. (TG; cc mailed to petitioner)

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ORDER ­ 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA WILLIAM G. MOORE, Petitioner, v. ORDER TO SHOW CAUSE UNITED STATES OF AMERICA, Respondent. This matter comes before the Court on William G. Moore's ("Moore") petition for writ of mandamus (Dkt. 1) and motion to compel (Dkt. 2). The Court has considered Moore's petition, the motion to compel, and the remaining record, and hereby denies the motion to compel and orders Moore to show cause why his petition should not dismissed for the reasons stated herein. As an initial matter, the Court has concluded that Moore's motion to compel should be denied as the motion is essentially a supplement to his petition in that he seeks the same mandamus relief in the motion to compel that is sought through his petition. Therefore, the Court will consider the motion to compel as a supplement to his petition rather than a motion for separate relief. Moore's petition seeks mandamus relief from the Court under 28 U.S.C. § 1361, to compel United States Attorney Jenny A. Durkan to perform duties Moore alleges are owed to him. See Dkts. 1 & 2. The Ninth Circuit has held that "[m]andamus is an CASE NO. C11-5121BHS

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extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." Patel v. Reno, 134 F.3d 99, 931 (1997). Having reviewed Moore's petition and supplement thereto, the Court concludes that he has failed to present a claim that is clear and certain or show that Durkan's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt. Therefore, the Court concludes that Moore should file additional briefing stating why the Court should not dismiss his petition for failure to meet the elements required in order to be entitled to mandamus relief. Therefore, the Court hereby ORDERS that: 1. Moore's motion to compel (Dkt. 2) is DENIED and will be considered a

supplement to his petition; and 2. Moore may file additional briefing to show cause why his petition should

not be dismissed, as discussed herein, on or before April 8, 2011. DATED this 24th day of March 2011.

A

BENJAMIN H. SETTLE United States District Judge

ORDER ­ 2