Robertson v. Doe

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] REGINALD ROBERTSON, 11 Case No. 20-02523 BLF (PR) Plaintiff, 12 ORDER DENYING MOTION FOR v. PERMISSION FOR ELECTRONIC 13 CASE FILING; DENYING “PETITION FOR ALTERNATIVE J. KAISER-NEVEL, et al., 14 WRIT OF MANDAMUS” Defendants. [15] 16 (Docket Nos. 28, 29) [17] 18 Plaintiff, a pre-trial detainee, filed the instant pro se civil rights action pursuant to [19] 42 U.S.C. § 1983 against jail staff at the Santa Rita County Jail, where he is currently 20 housed. With leave of the Court, Plaintiff filed a third amended complaint, Dkt. No. 27, 21 which shall be screened in due course. Before the Court is Plaintiff’s motion for 22 permission for electronic case filing, Dkt. No. 28, and a “petition for alternative writ of 23 mandamus,” Dkt. No. 29. [24] 25 DISCUSSION 26 A. Motion for Permission for Electronic Case Filing 27 In the motion for permission for electronic case filing, Plaintiff indicates that he is a 1 to authorize a representative of that organization, Gale Sanders, to access the docket and 2 have e-filing privileges on his behalf. Dkt. No. 28 at 3. However, there is no indication 3 that this representative is an attorney. If Ms. Sanders is an attorney and wants to represent 4 Plaintiff pro bono, she must make a formal appearance on his behalf. Otherwise, she and 5 her organization are non-parties and may not act on behalf of Plaintiff, who is representing 6 himself, in this matter. Accordingly, the motion for electronic case filing is DENIED since 7 Plaintiff has not demonstrated that he would be able to efile without the aid of Ms. Sanders 8 and her organization. 9 B. “Petition for Alternative Writ of Mandamus” 10 Plaintiff has also filed a “petition for alternative writ of mandamus” which appears 11 to have been prepared by “Destination Freedom,” although signed by Plaintiff. Dkt. No. 12 29. The “petition” cites to “FRCP Rules 42(a)(1), 42(a)(3), 28 U.S.C. §§ 1651 (a) and 13 1651(b).” Id. at 1 . Through this “alternative writ,” Plaintiff seeks to compel the 14 “Respondents, County of Alameda, real party in interest, Sheriff Greg Ahern, and their 15 subordinates, to perform their ministerial duty of providing inmates seeking access to the 16 courts with the requirements sent forth in Bounds v. Smith, 430 U.S. 817…,” i.e., to 17 provide Plaintiff (as an indigent inmate) with supplies, notarial services, and stamps in 18 order to access the court. Dkt. No. 29 at 1-2. There are several reasons why this filing is 19 inappropriate and without merit. 20 First of all, the petition cites to “FRCP Rules 42(a)(1), 42(a)(3),” but Plaintiff fails 21 to explain how the Federal Rules of Civil Procedure on “Consolidation; Separate Trials” 22 has any relevance to the remedy he seeks. Dkt. No. 29 at 1. Accordingly, the Court finds 23 no basis for granting the petition under these rules. 24 Furthermore, the All Writs Act provides in relevant part that “[t]he Supreme Court 25 and all courts established by Act of Congress may issue all writs necessary or appropriate 26 in aid of their respective jurisdictions and agreeable to the usages and principles of law." 1 federal courts to confine an inferior court to a lawful exercise of its prescribed jurisdiction 2 or to compel it to exercise its authority when it is its duty to do so. See Will v. United 3 States, 389 U.S. 90, 95 (1967). Only exceptional circumstances amounting to a judicial 4 usurpation of power will justify the invocation of this extraordinary remedy. See id.; In re 5 United States, 875 F.3d 1200, 1205 (9th Cir. 2017) (“The writ of mandamus is a drastic 6 and extraordinary remedy reserved only for really extraordinary cases.”) (quoting In re 7 Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011). The issuance of a writ is largely a matter of 8 the court’s discretion. In re United States, 875 F.3d at 1205 . Mandamus does not 9 supersede other remedies; it only comes into play when there is a want of such remedies. 10 See Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), cert. denied, 397 U.S. 941 (1970). 11 Here, Plaintiff’s lack of legal supplies and resources is simply not an “exceptional 12 circumstance” that justifies the extraordinary remedy of the issuance of a writ of 13 mandamus. See Will, 389 U.S. at 95 . Furthermore, this type of remedy is not available 14 where Plaintiff has an adequate legal remedy aside from mandamus, e.g., by filing a 15 separate lawsuit against the appropriate Defendants. See Carter, 411 F.2d 767 . 16 Accordingly, the petition for writ of mandamus must be denied as without merit. Plaintiff 17 may seek a remedy for his access to the courts claim by filing a separate lawsuit. 18 Even if the Court construes the petition as a request for a preliminary injunction or 19 temporary restraining order (“TRO”), it is without merit. Prior to granting a preliminary 20 injunction, notice to the adverse party is required. See Fed. R. Civ. P. 65(a)(1). Therefore, 21 a motion for preliminary injunction cannot be decided until the parties to the action are 22 served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). A TRO may be granted 23 without written or oral notice to the adverse party or that party’s attorney only if: (1) it 24 clearly appears from specific facts shown by affidavit or by the verified complaint that 25 immediate and irreparable injury, loss or damage will result to the applicant before the 26 adverse party or the party’s attorney can be heard in opposition, and (2) the applicant’s 1 reasons supporting the claim that notice should not be required. See Fed. R. Civ. P. 65(b). 2 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 3 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 4 Lopez v. Brewer, et al., 680 F.3d 1068, 1072 (9th Cir. 2012) (citation omitted) (emphasis 5 in original). The standard for issuing a TRO is similar to that required for a preliminary 6 injunction. See Los Angeles Unified Sch. Dist. v. United States Dist. Court, 650 F.2d 1004 , 7 1008 (9th Cir. 1981) (Ferguson, J., dissenting). “A plaintiff seeking a preliminary 8 injunction must establish that he is likely to succeed on the merits, that he is likely to suffer 9 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 10 favor, and that an injunction is in the public interest.” Winter v. Natural Resources 11 Defense Council, Inc., 555 U.S. 7, 20 (2008). 12 No defendant has been served in this action, and Plaintiff does not indicate that he 13 has otherwise notified any defendant of the claims in this matter. Accordingly, it does not 14 appear that Plaintiff has satisfied the notice requirement of Rule 65(a)(1). Furthermore, 15 Plaintiff has established none of the factors under Winter to otherwise warrant preliminary 16 relief. Lastly, a plaintiff is not entitled to an injunction based on claims not pled in the 17 complaint. Pacific Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th 18 Cir. 2015). “[T]here must be a relationship between the injury claimed in the motion for 19 injunctive relief and the conduct asserted in the underlying complaint. This requires a 20 sufficient nexus between the claims raised in a motion for injunctive relief and the claims 21 set forth in the underlying complaint itself.” Id. The underlying action is based on the 22 claim that Plaintiff was unlawfully confined in a visiting booth for several hours, resulting 23 in various deprivations. Dkt. No. 21 at 6-7. This claim has no nexus to the claim in the 24 motion that Plaintiff has a right of access to the courts, which includes being provided 25 legal supplies. Accordingly, to the extent that the “petition for alternative writ of 26 mandamus” seeks a TRO or preliminary injunction, the motion is DENIED as without 1 CONCLUSION 2 For the foregoing reasons, Plaintiff's motion for permission for electronic case 3 || filing is DENIED. Dkt. No. 28. Plaintiffs “petition for alternative writ of mandamus” is 4 || DENIED as without merit. He may file an access to the courts claim in a separate action 5 || and pay the applicable filing fees. 6 The Clerk shall include a copy of the court’s form complaint and an in forma 7 || pauperis application with a copy of this order to Plaintiff. 8 This order terminates Docket Nos. 28 and 29. 9 IT ISSO ORDERED. BETH LABSON FREEMAN United States District Judge g [14] o [16] Oo Z 18 [24] 25 Order Denying Motion for Efiling; Denying Pet. PRO-SE\BLF\CR.20\02523Robertson_deny.efile