Gleiston Porcinode Andrade v. Calif. Dept. of Corr.

• Court: District Court, C.D. California
• Decided: February 4, 2021
• Docket: 5:21-cv-00202
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 GLEISTON ANDRADE, ) Case No. 5:21-cv-00202-FMO-JC 13 ) Petitioner, ) 14 ) ORDER DENYING PETITION FOR A v. ) WRIT OF MANDAMUS AND 15 ) DISMISSING ACTION WITHOUT CALIF. DEPT. OF CORR., ) PREJUDICE 16 ) Respondent, ) 17 ____________________________ ) 18 On January 27, 2021, petitioner Gleiston Andrade, a California prisoner who 19 is proceeding pro se, filed a “Motion Emergency Extraordinary Writ of 20 Mand[a]mus for Adequate Medical Care” (“Petition”). Petitioner requests that this 21 Court issue a writ of mandamus to compel the California Department of 22 Corrections and Rehabilitation (CDCR) to provide him with “a separate evaluation 23 by a[n] outside hospital specialist to determine the level of care required to provide 24 the reasonable level of care ne[ce]ssary to provide proper pain management.” 25 (Petition at 3). 26 Based on the record and the applicable law, the Petition is denied and this 27 action is dismissed without prejudice because this Court does not have jurisdiction 28 to issue a writ of mandamus to compel the CDCR – a non-federal entity – to take 1 the action requested by plaintiff. 2 The federal mandamus statute provides: “The district courts shall have 3 original jurisdiction of any action in the nature of mandamus to compel an officer 4 or employee of the United States or any agency thereof to perform a duty owed to 5 the plaintiff.” 28 U.S.C. § 1361 (emphasis added). Federal courts have no 6 jurisdiction or authority to issue mandamus to direct non-federal entities or 7 officials in the performance of their duties. See Clark v. State of Washington, 366 8 F.2d 678, 681 (9th Cir. 1966) (“The federal courts are without power to issue writs 9 of mandamus to direct state courts or their judicial officers in the performance of 10 their duties . . . .”); Fox v. City of Pasadena, 78 F.2d 948 (9th Cir. 1935) (federal 11 district court has no jurisdiction to issue writ of mandamus to compel city officers 12 to perform duties under state law and city charter); Craig v. Koenig, 2020 WL 13 264338, *2 (N.D. Cal. Jan. 17, 2020) (federal court lacks authority to issue writ of 14 mandamus to compel CDCR or any of its employees to take particular actions 15 because they are state rather than federal actors); Davis v. Pagan, 1996 WL 16 281581, *1 (N.D. Cal. 1996) (“Federal mandamus may not be used to compel a 17 non-federal actor . . . to perform a duty.”); Amisub (PSL), Inc. v. State of Colorado 18 Department of Social Services, 879 F.2d 789, 790 n.2 (10th Cir. 1989) (federal 19 mandamus statute’s jurisdictional grant does not apply to state officials/agencies), 20 cert. denied, 496 U.S. 935 (1990); Coniston Corp. v. Village of Hoffman Estates, 21 844 F.2d 461, 469 (7th Cir. 1988) (federal court had no jurisdiction to issue 22 mandamus against state officials for violating their duties under state law); Cave v. 23 Beame, 433 F. Supp. 172, 175 (E.D.N.Y. 1977) (denying mandamus relief against 24 city/city official as mandamus does not lie against non-federal actors). 25 Accordingly, a petition which seeks a writ of mandamus to compel a non-federal 26 actor to take action is frivolous as a matter of law. See Demos v. U.S. District 27 Court, 925 F.2d 1160, 1161-62 (9th Cir.) (as federal court lacks jurisdiction to 28 issue writ of mandamus to state court, petition for writ of mandamus frivolous to 2 1 extent it seeks to compel state court to take or refrain from some action), cert. 2 denied, 498 U.S. 1123 (1991). 3 Moreover, mandamus is an extraordinary remedy “appropriate only when 4 the [petitioner’s] claim is clear and certain and the duty of the officer is ministerial 5 and so plainly prescribed as to be free from doubt . . . ” Nova Stylings, Inc. v. 6 Ladd, 695 F.2d 1179, 1180 (9th Cir. 1983) (citations omitted); see also Fallini v. 7 Hodel, 783 F.2d 1343, 1345 (9th Cir.1986) (same). Without passing on the merits 8 of the question, the Court observes that it is not “clear and certain” that the CDCR 9 is required to provide petitioner with a medical assessment by an outside hospital. 10 IT IS THEREFORE ORDERED that the Petition is denied and this action is 11 dismissed without prejudice.1 12 IT IS SO ORDERED. 13 14 DATED: February 4, 2021 15 16 ______________/s/_____________________ 17 HONORABLE FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 1As the claims asserted in the Petition are of a sort that might be presented in a civil 28 rights action, this action is dismissed without prejudice to petitioner’s filing of the same. 3