(HC) Martinez v. McDonald, No. 2:2009cv00719 - Document 5 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/1/09 recommending that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr. Objections due within 20 days.(Dillon, M) Modified on 10/1/2009 (Mena-Sanchez, L).

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(HC) Martinez v. McDonald 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 PATRICK A. MARTINEZ, 12 13 14 15 Petitioner, vs. FINDINGS AND RECOMMENDATIONS MICHAEL D. McDONALD, Respondent. 16 17 18 No. CIV S-09-0719-GEB-CMK / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of mandamus and/or mandate. 19 Under 28 U.S.C. § 1651(a), all federal courts may issue writs “in aid of their 20 respective jurisdictions. . .” In addition, the district court has original jurisdiction under 28 21 U.S.C. § 1361 to issue writs of mandamus. That jurisdiction is limited, however, to writs of 22 mandamus to “compel an officer or employee of the United States or any agency thereof to 23 perform a duty. . .” 28 U.S.C. § 1361 (emphasis added). It is also well-established that, with 24 very few exceptions specifically outlined by Congress, the federal court cannot issue a writ of 25 mandamus commanding action by a state or its agencies. See e.g. Demos v. U.S. Dist. Court for 26 Eastern Dist. of Wash., 925 F.2d 1160 (9th Cir. 1991). Where the federal court does have 1 Dockets.Justia.com 1 jurisdiction to consider a petition for a writ of mandamus, such a writ may not issue unless it is to 2 enforce an established right by compelling the performance of a corresponding non-discretionary 3 ministerial act. See Finley v. Chandler, 377 F.2d 548 (9th Cir. 1967). 4 In this case, petitioner seeks a writ from this court commanding state officials 5 with the California Department of Corrections and Rehabilitation to perform duties prescribed by 6 state law. As indicated above, this court lacks jurisdiction to command action by state agencies 7 by way of mandamus. This action should be dismissed without prejudice to seeking whatever 8 relief may be available in state court. 9 10 Based on the foregoing, the undersigned recommends that this action be dismissed without prejudice. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge's 15 Findings and Recommendations.” Failure to file objections within the specified time may waive 16 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 DATED: April 1, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 2

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