(PS) Fox v. County of Trinity et al, No. 2:2016cv01422 - Document 5 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/5/16 RECOMMENDING that plaintiffs complaint/petition for a writ of mandamus (Doc. 1 ) be denied, and this action be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Dillon, M)

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(PS) Fox v. County of Trinity et al Doc. 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS J. FOX, 12 13 14 Plaintiff, vs. FINDINGS AND RECOMMENDATIONS COUNTY OF TRINITY, et al., 15 Defendant. 16 / Plaintiff, proceeding pro se, brings this civil action. Pending1 before the court is 17 18 No. 2:16-cv-1422-KJM-CMK-P plaintiff’s complaint/petition for writ of mandamus (Doc. 1). 19 The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court is also required to screen complaints brought by litigants who have been 22 granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening 23 provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or 24 1 25 26 Defendant Shanna S. White has also filed a motion to dismiss (Doc. 3). This motion was filed prematurely, as the court had not screened the complaint, authorized service, and/or issued a summons. As such, the motion to dismiss should be denied as unnecessary and moot. 1 Dockets.Justia.com 1 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 2 from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and 3 1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this court 4 must dismiss an action if the court determined that it lacks subject matter jurisdiction. Because 5 plaintiff, who is not a prisoner, has been granted leave to proceed in forma pauperis, the court 6 will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h), the court will also 7 consider as a threshold matter whether it has subject-matter jurisdiction. 8 9 Plaintiff brings this action against the Trinity County election officials. It is a bit unclear exactly what wrong plaintiff claims has been done, but it appears to involve the handling 10 of ballots. Plaintiff is requesting this court issue an order requiring the election officials in 11 Trinity County to hand count all ballots. 12 Under 28 U.S.C. § 1651(a), all federal courts may issue writs “in aid of their 13 respective jurisdictions . . . .” In addition, the district court has original jurisdiction under 28 14 U.S.C. § 1361 to issue writs of mandamus. That jurisdiction is limited, however, to writs of 15 mandamus to “compel an officer or employee of the United States or any agency thereof to 16 perform a duty . . . .” 28 U.S.C. § 1361 (emphasis added). It is well-established that, with very 17 few exceptions specifically outlined by Congress, the federal court cannot issue a writ of 18 mandamus commanding action by a state or its agencies. See e.g. Demos v. U.S. Dist. Court for 19 Eastern Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991). Where the federal court does have 20 jurisdiction to consider a petition for a writ of mandamus, such a writ may not issue unless it is to 21 enforce an established right by compelling the performance of a corresponding non-discretionary 22 ministerial act. See Finley v. Chandler, 377 F.2d 548 (9th Cir. 1967). 23 Plaintiff’s request is outside this court’s power. The individuals plaintiff contends 24 are mishandling the ballots are not employees of the United States. This court does not, 25 therefore, have to power to command these individuals’ actions. 26 /// 2 1 2 Based on the foregoing, the undersigned recommends that plaintiff’s complaint/petition for a writ of mandamus (Doc. 1) be denied, and this action be dismissed. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court. Responses to objections shall be filed within 14 days after service of 7 objections. Failure to file objections within the specified time may waive the right to appeal. 8 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 12 DATED: August 5, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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