Townsel v. United States

[1] 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [3] Aug 15, 2019 [4] SEAN F. MCAVOY, CLERK [5] 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON [9] ERIC TOWNSEL, 10 4:19-cv-05048-SAB Plaintiff, [11] v. ORDER DENYING MOTION [12] TO RECONSIDER AND 13 GRANTING SECOND UNITED STATES, JUDGE SALVADOR OPPORTUNITY TO 14 MENDOZA, JR., JUDGE JAMES L. VOLUNTARILY DISMISS 15 ROBART and MMAGISTRATE JUDGE COMPLAINT MARY ALICE THEILER, [16] Defendants. [17] 18 By Order filed July 1, 2019, the Court found that Plaintiff’s complaint failed [19] to state a claim upon which relief may be granted under Bivens v. Six Unknown [20] Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and that no [21] amendment could cure this deficiency. ECF No. 9 at 2-3. Rather than dismissing [22] the complaint outright pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2), the [23] Court granted Plaintiff the opportunity to voluntarily dismiss. Id. at 3. [24] Plaintiff, a pro se prisoner at the Washington State Penitentiary, is [25] proceeding in forma pauperis; Defendants have not been served. Rather than [26] accept the offer to voluntarily dismiss, Plaintiff filed a document titled, “Petitioner [27] and Plaintiff’s E-Filed Objections and Response to the Judges Order ECF No. 9 [28] and Motion to Reconsider Order,” which was noted for hearing on August 26, 1 2019. ECF No. 10. It was considered without oral argument on the date signed 2 below. 3 Plaintiff argues that because his case is “based upon a Writ of Mandamus” 4 and is not seeking monetary damages, he should be allowed to proceed against the 5 United States and the named judicial officers. Plaintiff contends he did not bring 6 this action under 42 U.S.C. § 1983 . Regardless, “[a]ctions under § 1983 and those 7 under Bivens are identical save for the replacement of a state actor under § 1983 by 8 a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 9 1991). 10 Bivens recognized an implied private action for money damages against 11 federal officers alleged to have violated a citizen’s constitutional rights. Bivens, [12] 403 U.S. at 397 . However, “relief under Bivens does not encompass injunctive and 13 declaratory relief where, as here, the equitable relief sought requires official 14 government action.” Solida v. McKelvey, 820 F.3d 1090, 1093 (9th Cir. 2016). To 15 the extent Plaintiff is asserting a claim under Bivens, he has failed to state a claim [16] upon which relief may be granted. [17] Plaintiff seeks a declaration that court rulings violated his constitutional [18] rights. ECF No. 10 at 4-5. It is not the province of a United States District Court to [19] grant such relief. Rather, a litigant wishing to challenge a court ruling may appeal [20] that decision to the proper Circuit Court of Appeals. [21] Plaintiff asks the Court to reconsider the Order Granting Opportunity to [22] Voluntarily Dismiss. ECF No. 10 at 1. An order that resolves fewer than all the [23] claims among the parties—that is, a non-final order—“may be revised at any time [24] before the entry of judgment adjudicating all the claims and all the parties’ rights [25] and liabilities.” Fed. R. Civ. P. 54(b). Where reconsideration of a non-final order is [26] sought, the court has “inherent jurisdiction to modify it, alter or revoke it.” United [27] States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000); see Am. Canoe Ass’n v. [28] Murphy Farms, Inc., 326 F.3d 505 , 514-15 (9th Cir. 2003) (noting that motions for 1 reconsideration of non-final orders are not subject to the strict standards applicable 2 to motions for reconsideration of final judgment). 3 Plaintiff’s request for reconsideration is denied. Plaintiff has failed to 4 provide any valid reason why this Court should amend its prior ruling. The Federal 5 Rules of Civil Procedure state that writs of mandamus are abolished in favor of an 6 appropriate motion, Fed. R. Civ. P. 81(b). Finley v. Chandler, 377 F.2d 548 (9th 7 Cir. 1967). In addition, judicial immunity is not limited to immunity from 8 damages, it also extends to actions for declaratory, injunctive, and other equitable 9 relief. See Mullis v. U.S. Bankruptcy Court for Dist. of Nevada, 828 F.2d 1385 , 10 1394 (9th Cir. 1987). Plaintiff’s apparent attempt to circumvent the proper appeal 11 process is misguided. For the reasons set forth above, IT IS ORDERED Plaintiff’s 12 motion for reconsideration, ECF No. 10 is DENIED. 13 Because Plaintiff is proceeding pro se the Court will grant him a second and 14 final opportunity to voluntarily dismiss. Plaintiff may submit the attached Motion 15 to Voluntarily Dismiss within thirty (30) days of the date of this Order. Failure to [16] do so will result in the dismissal of the complaint as frivolous and for failure to [17] state a claim upon which relief may be granted under 28 U.S.C. §§ 1915A(b)(1) [18] and 1915(e)(2), and a “strike” under 28 U.S.C. § 1915 (g). A voluntary dismissal [19] within this 30-day period will not count as a strike. [20] // [21] // [22] // [23] // [24] // [25] // [26] // [27] // [28] 1 Plaintiff is still obligated to pay the full filing fee of $350.00. However, if Plaintiff elects to take a voluntary dismissal within the 30-day period, Plaintiff may simultaneously file a separate motion and affidavit (or declaration under penalty of perjury) to waive collection of the remaining balance of the filing fee in this action. 5|| The Court will grant such a motion only for good cause shown. In no event will prior partial payments be refunded to Plaintiff. 7 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order and forward a copy to Plaintiff, along with a form Motion to Voluntarily Dismiss 9| Complaint. The Clerk of Court shall set a 30-day case management deadline and terminate the prior deadline in this case. 11 DATED this 15" day of August 2019. [17] 18 □ Sfoukeyld Ecc Yoar Stanley A. Bastian 5 United States District Judge [28] ADNED NENVING UATION TA DEOCANCINED ANN CDANTING [4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON [8] ERIC TOWNSEL, NO: 4:19-cv-05048-SAB 9 Plaintiff, 10 v. 11 UNITED STATES, JUDGE MOTION TO VOLUNTARILY 12 SALVADOR MENDOZA, JR., DISMISS COMPLAINT JUDGE JAMES L. ROBART and 13 MMAGISTRATE JUDGE MARY 14 ALICE THEILER, Defendants. [17] Plaintiff ERIC TOWNSEL requests the court grant his Motion to [18] Voluntarily Dismiss the Complaint pursuant to Rule 41(a), Federal Rules of Civil [19] 20 Procedure. Plaintiff is proceeding pro se; Defendants have not been served in this [21] action. [22] DATED this day of 2019. [25] __________________ ________________ 26 ERIC TOWNSEL