(HC) Thomas v. Solda, No. 1:2016cv00117 - Document 11 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Mandamus be DISMISSED for Lack of Jurisdiction re 1 Petition filed by Rayshon Thomas ; referred to Judge Drozd, signed by Magistrate Judge Erica P. Grosjean on 02/19/2016. (30-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYSHON THOMAS, Case No. 1:16-cv-00117- DAD-EPG-HC Petitioner, 12 13 v. 14 FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF PETITION FOR WRIT OF MANDAMUS J. SOLDA, et al., 15 Respondents. 16 17 Petitioner Rayshon Thomas is a Madera County jail inmate proceeding pro se with a 18 petition for writ of mandamus pursuant to 28 U.S.C. § 1651. On January 11, 2016, Petitioner 19 filed the instant petition in the Sacramento Division of the United States District Court for the 20 Eastern District of California. (ECF No. 1). On January 25, 2016, the Sacramento Division 21 transferred the action to this Court. (ECF No. 4). 22 In the instant petition, Petitioner appears to challenge a California Supreme Court order 23 that was issued on December 16, 2015, transferring his state petition for writ of mandamus to the 24 California Court of Appeal with the direction that if the petition was identical to a prior petition, 25 the repetitious petition must be denied. Petitioner alleges said order was issued without a hearing 26 and without any substantial evidence showing the petition to be repetitious. Petitioner also 27 appears to allege various due process errors in proceedings in the Madera County Superior 28 Court, including the denial of his Marsden motion. Petitioner has named as Respondents a 1 1 Madera County Superior Court judge, the Madera County Public Defender, the California 2 Supreme Court, and the California Court of Appeal, Fifth Appellate District. On February 11, 3 2016, Petitioner filed a supplement to the petition regarding an encounter with the public 4 defender that occurred on January 27, 2016. (ECF No. 10). 5 Petitioner’s pleading is a petition for writ of mandamus. It is labeled as such and asks for 6 relief in the form of compelling certain state public officials to perform certain duties. Thus, it is 7 governed by the federal mandamus statute, which provides: “The district courts shall have 8 original jurisdiction of any action in the nature of mandamus to compel an officer or employee of 9 the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 10 1361 (emphasis added). “The federal courts are without power to issue writs of mandamus to 11 direct state courts or their judicial officers in the performance of their duties . . . .” Clark v. 12 Washington, 366 F.2d 678, 681 (9th Cir. 1966). See also Davis v. Lansing, 851 F.2d 72, 74 (2d 13 Cir. 1988) (“The federal courts have no general power to compel action by state officials . . . .”). 14 The extraordinary remedy of mandamus is not available in the instant case because the named 15 Respondents are not officers, employees, or agencies of the United States, and the Court lacks 16 jurisdiction to compel action by California state officials. 17 18 RECOMMENDATION Accordingly, the Court hereby RECOMMENDS that the petition for writ of mandamus 19 be DISMISSED for lack of jurisdiction. 20 This Findings and Recommendation is submitted to the assigned United States District 21 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 22 Rules of Practice for the United States District Court, Eastern District of California. Within 23 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 24 written objections with the court and serve a copy on all parties. Such a document should be 25 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 26 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 27 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified 28 /// 2 1 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 2 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: February 19, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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