(HC) Staich v. California Board of Prison Hearings Chairman, No. 2:2007cv00171 - Document 4 (E.D. Cal. 2007)

Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Craig M. Kellison on 2/1/07 RECOMMENDING that this Mandamus Petition be dismissed without prejudice. Objections to F&Rs due within 20 days. (Engbretson, K.)

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(HC) Staich v. California Board of Prison Hearings Chairman Case 2:07-cv-00171-MCE-CMK Doc. 4 Document 4 Filed 02/01/2007 Page 1 of 2 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IVAN VON STAICH, 12 13 14 No. CIV S-07-0171-MCE-CMK-P Petitioner, vs. FINDINGS AND RECOMMENDATIONS CALIFORNIA BOARD OF PRISON HEARINGS, et al., 15 Respondents. 16 / 17 18 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 19 mandamus pursuant to 28 U.S.C. § 1651(a). Petitioner names only state agencies and/or 20 employees. It appears that petitioner seeks a writ commanding respondents to hold a parole 21 suitability hearing sooner rather than later. It also appears that petitioner is asserting a violation 22 of his equal protection rights with respect to parole suitability. 23 Under 28 U.S.C. § 1651(a), all federal courts may issue writs “in aid of their 24 respective jurisdictions. . .” Here, the relief petitioner seeks would not be in aid of this court’s 25 jurisdiction. Rather, he seeks some kind of action by the Parole Board. Therefore, this petition 26 cannot proceed under § 1651(a). 1 Dockets.Justia.com Case 2:07-cv-00171-MCE-CMK Document 4 Filed 02/01/2007 Page 2 of 2 1 The district court does have original jurisdiction under 28 U.S.C. § 1361 to issue 2 writs of mandamus. That jurisdiction is limited, however, to writs of mandamus to “compel an 3 officer or employee of the United States or any agency thereof to perform a duty. . .” 28 U.S.C. 4 § 1361 (emphasis added). In this case, petitioner has not named any officers or employees of the 5 United States as respondents. Therefore, the petition cannot proceed under § 1361. 6 Finally, it is well-established that the federal court cannot issue a writ of 7 mandamus commanding action by a state or its agencies. See e.g. Demos v. U.S. Dist. Court for 8 Eastern Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991). 9 For these reasons, the court finds that dismissal of the instant mandamus petition 10 is appropriate. Because petitioner may be seeking relief available under 28 U.S.C. § 2254 and/or 11 42 U.S.C. § 1983, the court will recommend dismissal without prejudice to any relief petitioner 12 may be entitled to under those statutes. 13 14 Based on the foregoing, the undersigned recommends that this mandamus petition be dismissed without prejudice. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court. The document should be captioned “Objections to Magistrate Judge's 19 Findings and Recommendations.” Failure to file objections within the specified time may waive 20 the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 DATED: February 1, 2007. 23 24 25 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

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