Tran v. Carr et al, No. 4:2010cv04779 - Document 7 (N.D. Cal. 2010)

Court Description: ORDER GRANTING 4 IN FORMA PAUPERIS STATUS; AND DISMISSING ACTION. Signed by Judge Claudia Wilken on 12/1/2010. (ndr, COURT STAFF) (Filed on 12/1/2010)
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Tran v. Carr et al Doc. 7 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 TUNG V. TRAN, ) ) Plaintiff, ) ) v. ) ) ) DENNIS M. CARR, et al., ) ) Defendants. ) _________________________________ ) No. C 10-04779 CW (PR) ORDER GRANTING IN FORMA PAUPERIS STATUS; AND DISMISSING ACTION 9 INTRODUCTION United States District Court For the Northern District of California 10 Plaintiff Tung V. Tran is a state prisoner who is currently 11 incarcerated at High Desert State Prison. He has filed this pro se 12 civil rights action and seeks leave to proceed in forma pauperis. 13 He claims his "due process rights were violated when he was denied 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the right to have his day in court." (Compl. at 4.) Plaintiff seems to be referring to a denial of due process rights in his state court case in the San Mateo County Superior Court dealing with a 1998 car accident, which was dismissed on January 5, 2009. On January 25, 2006, Plaintiff filed a previous federal civil rights action relating to the same 1998 car accident alleged in the present complaint. See Tran v. Carr, Case No. C 06-0476 CW (PR). Upon reviewing that complaint in an Order dated December 24, 2006, the Court included the following background: In his complaint, Plaintiff accuses Defendant Dennis M. Carr, of the Law Offices of Dennis M. Carr, of legal malpractice in administering claims stemming from a lawsuit against Allstate Insurance Company for injuries Plaintiff sustained in a car accident in 1998. Also named as Defendants in this action are Defendants Norma Docker of Allstate Insurance Company, Karen Timmins of Farmers Insurance Group as well as the defendant in the aforementioned lawsuit, Johnny G. Carillo, who was insured with Allstate Insurance 1 2 Company. Plaintiff seeks damages for loss of settlement damages, for pain and suffering, and for emotional distress. 3 (Dec. 24, 2006 Order in Case No. C 06-0476 CW (PR) at 1-2.) 4 Court found that Plaintiff's claims against the named defendants 5 were not cognizable. 6 to state a claim for relief under § 1983 because "[a]ttorneys in 7 private practice are private individuals and are not state actors." 8 (Id. at 2-3 (citing Simmons v. Sacramento County Superior Court, 9 318 F.3d 1156, 1161 (9th Cir. 2003)).) The His allegations against Defendant Carr failed Plaintiff's claims against United States District Court For the Northern District of California 10 Defendants Docker, Timmins and Carillo were also dismissed because 11 these defendants are not state actors and "[p]urely private 12 conduct, no matter how wrongful, is not covered under § 1983." 13 (Id. at 3 (citing Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 14 559 (9th Cir. 1974), cert. denied, 421 U.S. 949 (1975)).) 15 Therefore, the Court dismissed Plaintiff's previous action with 16 prejudice. 17 prevent Plaintiff from seeking relief for his legal malpractice 18 claim in the State courts." 19 However, the Court clarified that "this Order does not (Id. at 3.) In the present matter, the record shows that Plaintiff sought 20 relief for his legal malpractice claim in state court. 21 Carr, et al., San Mateo Superior Court Case No. CIV457659. 22 However, that action was dismissed by the state superior court on 23 January 5, 2009. 24 not understand that he needed to file the required documents to 25 appear at the trial . . . and because he did not appeal 26 (telephonically) at trial, the Superior Court Judge dismissed his 27 case entirely." 28 requested a Vietnamese translator, but one was not provided. See Tran v. Plaintiff, who is Vietnamese, claims that he "did (Compl. at 5.) Plaintiff claims that he had 2 Plaintiff "appealed on March 26, 2009." 2 Plaintiff requested a status update on his appeal, he was informed 3 on July 8, 2009 that his appeal was not received by the state court 4 of appeal. 5 21, 2009 appeal." 6 court of appeal "dismissed the Plaintiff's appeal asserting, 'To 7 the contrary, the proof of service attached to the earlier notice 8 of appeal reflects that it was mailed without an address for that 9 court . . . [and] because the only operative notice of appeal is 10 United States District Court For the Northern District of California 1 the untimely July 21, 2009 notice of appeal, the above-referenced 11 appeal is hereby dismissed.'" 12 for review in the state supreme court stating that "not having the 13 address accompanying the title of the court on the Proof of Service 14 did not affect its adequacy." 15 state supreme court sent Plaintiff a letter stating that "his 16 petition cannot be entertained because the petition was filed 17 late." 18 (Id.) However, after Plaintiff then "resorted to filing of the untimely July (Id. at 6.) On October 23, 2009, the state (Id.) (Id.) Plaintiff filed a petition On February 17, 2010, the (Id.) Here, under the "Relief" section of the complaint, Plaintiff 19 "request[s] that this court made a determination of whether he 20 would have the legal right to procede [sic] in the appeal of the 21 Superior Court's ruling, the court of appeals determination that 22 the appeal was not timely submitted, and the California Supreme 23 Court's lack of jurisdiction." 24 relief sought in this action, Plaintiff seems to be seeking a writ 25 of mandamus to challenge the failure by the state courts to rule on (Id. at 3, 4b1.) Based on the 26 27 28 1 The Court refers to the last page of the complaint as "4b" because Plaintiff has attached four hand-written pages to page three of the complaint, which were numbered "4" through "7." 3 1 the merits of his action relating to the 1998 car accident. 2 3 DISCUSSION I. 4 Standard Federal courts must engage in a preliminary screening of cases 5 in which prisoners seek redress from a governmental entity or 6 officer or employee of a governmental entity. 7 § 1915A(a). 8 the complaint, or any portion of the complaint, if the complaint 9 "is frivolous, malicious, or fails to state a claim upon which 28 U.S.C. The Court must identify cognizable claims or dismiss United States District Court For the Northern District of California 10 relief may be granted," or "seeks monetary relief from a defendant 11 who is immune from such relief." 12 pleadings must be liberally construed. 13 Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 14 II. 15 Id. § 1915A(b). However, pro se Balistreri v. Pacifica Writ of Mandamus The federal mandamus statute provides: "The district courts 16 shall have original jurisdiction of any action in the nature of 17 mandamus to compel an officer or employee of the United States or 18 any agency thereof to perform a duty owed to the plaintiff." 19 U.S.C. § 1361. 20 28 However, this Court has no authority to take the actions 21 requested by Plaintiff by way of a writ of mandamus. 22 courts are without power to issue mandamus to direct state courts, 23 state judicial officers, or other state officials in the 24 performance of their duties. 25 state court or official to take or refrain from some action is 26 frivolous as a matter of law. 27 925 F.2d 1160, 1161-62 (9th Cir.), cert. denied, 111 S. Ct. 1082 28 (1991); see also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. Federal A petition for mandamus to compel a See Demos v. U.S. District Court, 4 1 2001) (denying petition for writ of mandamus that would order state 2 trial court to give plaintiff access to certain trial transcripts 3 which he sought in preparation for filing state post-conviction 4 petition; federal court may not, as a general rule, issue mandamus 5 to a state judicial officer to control or interfere with state 6 court litigation). 7 8 9 United States District Court For the Northern District of California 10 CONCLUSION Accordingly, this action is DISMISSED for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. Leave to proceed in forma pauperis is GRANTED (docket no. 4). 11 The total filing fee due is $350.00. 12 fee due for Plaintiff at this time is $1.07. 13 and the attached instruction sheet will be sent to Plaintiff, the 14 Prison Trust Account Office and the Court's Financial Office. 15 The initial partial filing All pending motions are TERMINATED. A copy of this Order The Court certifies that 16 any appeal is not taken in good faith. 17 The Clerk of the Court shall enter judgment in accordance with this 18 Order and close the file. 28 U.S.C. § 1915(a)(3). 19 This Order terminates Docket no. 4. 20 IT IS SO ORDERED. 21 22 23 DATED: 12/1/2010 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 5 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 INSTRUCTIONS FOR PAYMENT OF PRISONER'S FILING FEE 4 5 6 The prisoner shown as the plaintiff or petitioner on the attached order has filed a civil action in forma pauperis in this court and owes to the court a filing fee. Pursuant to 28 U.S.C. § 1915, the fee is to be paid as follows: 7 The initial partial filing fee listed on the attached order should be deducted by the prison trust account office from the prisoner's trust account and forwarded to the clerk of the court as the first installment payment on the filing fee. This amount is twenty percent of the greater of (a) the average monthly deposits to the prisoner's account for the 6-month period immediately preceding the filing of the complaint/petition or (b) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint/petition. 8 9 United States District Court For the Northern District of California 10 11 12 Thereafter, on a monthly basis, 20 percent of the preceding month's income credited to the prisoner's trust account should be deducted and forwarded to the court each time the amount in the account exceeds ten dollars ($10.00). The prison trust account office should continue to do this until the filing fee has been paid in full. 13 14 15 16 17 18 19 20 21 If the prisoner does not have sufficient funds in his/her account to pay the initial partial filing fee, the prison trust account office should forward the available funds, and carry the balance forward each month until the amount is fully paid. If the prisoner has filed more than one complaint, (s)he is required to pay a filing fee for each case. The trust account office should make the monthly calculations and payments for each case in which it receives an order granting in forma pauperis and these instructions. 24 The prisoner's name and case number must be noted on each remittance. The initial partial filing fee is due within thirty days of the date of the attached order. Checks should be made payable to Clerk, U.S. District Court and sent to Prisoner Accounts Receivable, U.S. District Court, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102. 25 cc: 22 23 26 Plaintiff/Petitioner Finance Office 27 28 6 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 TUNG, 4 Case Number: CV10-04779 CW Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 TRAN-V-DENNIS M. CARR et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 2, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 16 17 Tung V. Tran T-42650 High Desert State Prison P.O. Box 3030 Facility A, Bldg. #2-112L Susanville, CA 96127 18 19 20 Prison Trust Account Office High Desert State Prison P.O. Box 3030 Facility A, Bldg. #2-112L Susanville, CA 96127 21 22 23 U.S. District Court Financial Office San Francisco, CA (sent via inter-office mail) 24 25 Dated: December 2, 2010 26 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 27 28 7