Dunsmore v. The Supreme Court of California

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] DARRYL DUNSMORE, Case No.: 22-CV-246 JLS (BGS) [11] Petitioner, 12 ORDER DISMISSING CASE v. WITHOUT PREJUDICE AND [13] WITHOUT LEAVE TO AMEND THE SUPREME COURT OF THE STATE [14] OF CALIFORNIA, et al., [15] Respondents. [17] 18 On February 22, 2022, Plaintiff Darryl Dunsmore, a prisoner currently incarcerated 19 at California Health Care Facility in Stockton, California (“CHCF”) and proceeding pro 20 se, filed a “Petition for Writ of Mandate” pursuant to 28 U.S.C. § 1361 , in which he seeks 21 to compel the San Diego Superior Court to “award all credits as a serious offender and all 22 credits according to law” and to compel the California Department of Corrections and 23 Rehabilitation (“CDCR”) and the CHCF to release him from custody. Pet., ECF No. 1 at 24 6. 25 I. Failure to Pay Filing Fee or Request IFP Status 26 All parties instituting any civil action, suit, or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 $350. See 28 U.S.C. § 1914 (a). An action may proceed despite a party’s failure to pay this 1 filing fee only if the party is granted leave to proceed in forma pauperis (“IFP”) pursuant 2 to 28 U.S.C. § 1915 (a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir.2007); 3 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 4 Here, Plaintiff has neither prepaid the $350 filing fee required to commence a civil 5 action, nor has submitted a Motion to Proceed IFP. Therefore, this action is subject to 6 immediate dismissal pursuant to 28 U.S.C. § 1914 (a). 7 II. Sua Sponte Screening per 28 U.S.C. § 1915A(b)(1) 8 The Court further finds that even if Plaintiff had paid the full $350 filing fee or 9 moved to proceed IFP pursuant to 28 U.S.C. § 1915 (a), his action nevertheless remains 10 subject to sua sponte dismissal under 28 U.S.C. § 1915A. This statute requires the court 11 to “review, before docketing, if feasible or, in any event, as soon as practicable after 12 docketing . . . a civil action in which a prisoner seeks redress from a governmental entity 13 or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). When conducting 14 this review, the court may dismiss the action, or any portion of it, if it “is frivolous, 15 malicious, or fails to state a claim upon which relief may be granted.” See 28 U.S.C. 16 § 1915A(b) (1); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); Resnick v. 17 Hayes, 213 F.3d 443 , 446–47 (9th Cir. 2000). An action is frivolous “where it lacks an 18 arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 19 Here, Petitioner alleges that the San Diego Superior Court, the CDCR, and the CHCF 20 have improperly calculated his custody credits and are “holding him hostage.” Pet., ECF 21 No. 1. He invokes jurisdiction under 28 U.S.C. § 1361 to ask this Court to compel, or issue 22 mandamus to, the state superior court, the CDCR, and the CHCF to properly calculate his 23 custody credits and stop “holding him hostage.” Id. Mandamus is a “drastic and 24 extraordinary” remedy “reserved for really extraordinary causes.” Cheney v. U.S. Dist. 25 Court for the Dist. of Columbia, 542 U.S. 367 , 379–80 (2004) (quoting Ex parte Fahey, [26] 332 U.S. 258 , 259–60 (1947)). Moreover, mandamus relief under 28 U.S.C. § 1361 is only 27 available to compel “an officer of the United States or any agency thereof” to perform a 28 duty. 28 U.S.C. § 1361 . None of the parties Petitioner lists as Respondents are “officer[s] 1 or employee[s] of the United States” or of “any agency thereof,” and Petitioner has not 2 identified any duties owed to him by “an officer or employee of the United States or any 3 agency thereof . . . .” Pet., ECF No. 1 at 1; 28 U.S.C. § 1361 . Moreover, 28 U.S.C. § 1361 4 does not invest a federal district court with the power to compel performance of a state 5 court, judicial officer, or another state official’s duties under any circumstances. Pennhurst 6 State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (11th Amendment prohibits 7 federal district court from ordering state officials to conform their conduct to state law). 8 Thus, a petition for mandamus to compel a state official to take or refrain from some action 9 is frivolous as a matter of law. Demos v. U.S. District Court, 925 F.2d 1160 , 1161–72 (9th 10 Cir. 1991); Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. 11 Cal. 1998 ) (finding that federal courts are without power to issue writs of mandamus to 12 direct state agencies in the performance of their duties); Dunlap v. Corbin, 532 F. Supp. 13 183, 187 (D. Ariz. 1981) (same), aff’d without opinion, 673 F.2d 1337 (9th Cir. 1982); 14 Newton v. Poindexter, 578 F. Supp. 277, 279 (C.D. Cal. 1984) (noting that federal 15 mandamus statute has no application to state officers or employees); Mitchell v. Curry, [16] 2010 WL 3386005 , at *1 (N.D. Cal. 2010) (unpublished) (dismissing as frivolous 17 prisoner’s petition for writ of mandamus requesting federal court to compel state superior 18 court and prison officials to take action). 19 III. Conclusion and Order 20 For the reasons set forth above, the Court hereby: 21 (1) DISMISSES this action sua sponte for failing to pay the $350 filing fee or 22 file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914 (a) and 1915(a); 23 (2) DISMISSES this action as frivolous and without leave to amend pursuant to 24 28 U.S.C. § 1915A(b)(1); and 25 (3) CERTIFIES that an IFP appeal from this Order would also be frivolous and 26 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915 (a)(3). See 27 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548 , 28 /// 1 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 2 || would not be frivolous). The Clerk of the Court shall close the file. 3 IT IS SO ORDERED. 4 Dated: March 25, 2022 tt 5 jen Janis L. Sammartino 6 United States District Judge