Free Order - District Court of California - California

Case 4:07-cv-04803-CW

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a prisoner of the State of California who is incarcerated at Ironwood State Prison. petitions for a writ of mandamus. for in forma pauperis status. He has filed two pro se v. RICHARD W. WEIKING, et al., Defendants. _____________________________/ Defendants. _____________________________/ No. C 07-4803 CW (PR) INFINITY, Plaintiff, ORDER OF DISMISSAL v. SUPREME COURT OF CALIFORNIA, et al., INFINITY, Plaintiff, ORDER OF DISMISSAL No. C 07-4022 CW (PR)

He has also filed applications

However, upon reviewing both

petitions, it is apparent that the petition for a writ of mandamus in Case No. C 07-4803 CW (PR) should have been filed as a supplement to the petition for a writ of mandamus in Case No. C 07-4022 CW (PR). BACKGROUND Plaintiff contends that a writ of mandamus is the proper vehicle by which to compel Defendants to "stop changing, adding to, or disrespecting [the] legal name of Petitioner." He claims

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that Defendants have added "a.k.a. James Frank Strong" or "a.k.a. Frank James Strong" next to his legal name, Infinity, in his filings in state and federal court. DISCUSSION I. Standard Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. § 1915A(a). 28 U.S.C.

The Court must identify cognizable claims or dismiss

the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

However, pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d, 696 699 (9th Cir. 1990). II. Writ of Mandamus The federal mandamus statute provides: "The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." U.S.C. § 1361. however. Mandamus relief is an extraordinary remedy, 28

It is available to compel a federal officer to perform

a duty only if: (1) the plaintiff's claim is clear and certain; (2) the duty of the officer is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available. (9th Cir. 1986). See Fallini v. Hodel, 783 F.2d 1343, 1345

Plaintiff has named Richard W. Wieking, Clerk 2

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of the Court, as a defendant.

Plaintiff alleges that Defendant

Wieking "openly, without due cause, or jurisdiction added, 'a.k.a. James Frank Strong' to the title sheet of Plaintiff's petition for writ of mandamus" in Case No. C 07-4022 CW (PR). Defendant Wieking must make a reasonable inquiry and ensure the accuracy of records in response to an inmate's contention that erroneous information is being maintained in his filings, cf. Sellers v. Bureau of Prisons, 959 F.2d 307, 312 (D.C. Cir. 1992); however, this does not entitle Plaintiff to mandamus relief as he has an adequate remedy available through the Privacy Act, 5 U.S.C. § 552a, see id. at 312-13. The Court has no authority to take the actions requested by Plaintiff against the remaining defendants, who are state actors, by way of a writ of mandamus. Federal courts are without power

to issue mandamus to direct state courts, state judicial officers, or other state officials in the performance of their duties. A petition for mandamus to compel a state court or

official to take or refrain from some action is frivolous as a matter of law. See Demos v. U.S. District Court, 925 F.2d 1160,

1161-62 (9th Cir.), cert. denied, 111 S. Ct. 1082 (1991); see also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus that would order state trial court to give plaintiff access to certain trial transcripts which he sought in preparation for filing state post-conviction petition; federal court may not, as a general rule, issue mandamus to a state judicial officer to control or interfere with state court litigation). lies in state court. 3 Plaintiff's mandamus remedy, if any,

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CONCLUSION For the foregoing reasons, 1. The Clerk is ordered to revoke filing of the petition

for a writ of mandamus in Case No. C 07-4803 CW (PR) and to file it as a supplement to the petition for a writ of mandamus in Case No. C 07-4022 CW (PR). 2. The Clerk shall close Case No. 07-4803 CW (PR).

Plaintiff's application for in forma pauperis status in Case No. 07-4803 CW (PR) is terminated as moot because no filing fee is due as this action was opened in error. 3. Plaintiff's petition for a writ of mandamus and

supplement to the petition for a writ of mandamus are DISMISSED for failure to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. 4. Plaintiff's application for in forma pauperis status in

Case No. C 07-4022 is GRANTED, and the Clerk of the Court shall close Case No. 07-4022 CW (PR). 5. The Clerk of the Court shall issue a judgment in

accordance with this Order and close both files as indicated above. IT IS SO ORDERED. DATED: 1/15/08 CLAUDIA WILKEN United States District Judge

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1 2 3 INFINITY, 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: January 15, 2008 Infinity C27692 Ironwood State Prison C3-203-Low 19005 Wiley's Well Road Blythe, CA 92226 v. Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-04803 CW CV07-04022 CW CERTIFICATE OF SERVICE

RICHARD W. WIEKING et al, Defendant. /

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 January 15, 2008, 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.

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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