(HC) Rojes-Reyes v. Trate ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL ROJAS-REYES, Case No. 1:23-cv-00988-SKO 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO 14 B. M. TRATE, Warden, DISMISS PETITION FOR WRIT OF MANDAMUS 15 Respondent. (21-DAY OBJECTION DEADLINE) 16 17 18 On June 30, 2023, Petitioner filed a petition for writ of mandamus pursuant to 28 U.S.C. 19 § 1361 in this Court. Upon review of the petition, the Court finds that mandamus relief is 20 unavailable. Therefore, the Court will recommend the petition be DISMISSED WITH 21 PREJUDICE. 22 DISCUSSION 23 I. Preliminary Screening of Petition 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous, malicious,” or that fail to state a claim upon which relief may be granted, or that seek 1 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 2 dismiss the case at any time if the court determines that ... the action or appeal ... fails to state a 3 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 4 II. Legal Standards Applicable to Petitions for Writ of Mandamus 5 The All Writs Act, codified at 28 U.S.C. § 1651(a), provides that “[t]he Supreme Court 6 and all courts established by Act of Congress may issue all writs necessary or appropriate in aid 7 of their respective jurisdictions and agreeable to the usages and principles of law.” The federal 8 mandamus statute set forth at 28 U.S.C. § 1361 provides: “The district courts shall have original 9 jurisdiction of any action in the nature of mandamus to compel an officer or employee of the 10 United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. 11 However, mandamus is an extraordinary remedy. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 12 1998). Mandamus relief is only available to compel an officer of the United States to perform a 13 duty if (1) the petitioner's claim is clear and certain; (2) the duty of the officer “is ministerial and 14 so plainly prescribed as to be free from doubt,” Tagupa v. East-West Center, Inc., 642 F.2d 1127, 15 1129 (9th Cir.1981) (quoting Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir.1970)); and (3) no other 16 adequate remedy is available. Piledrivers' Local Union No. 2375 v. Smith, 695 F.2d 390, 392 17 (9th Cir.1982). 18 III. Analysis 19 Petitioner claims that the Bureau of Prisons is denying him adequate programming, healthy 20 diets and hot meals, fresh air and outside recreation, and access to courts due to lockdowns. 21 Petitioner is challenging the conditions of his confinement, and such claims must be brought in 22 a civil rights action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of 23 Narcotics, 403 U.S. 388 (1971), the “federal analogue” to an action brought pursuant to 42 U.S.C. 24 § 1983. Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006). Petitioner has not shown that no 25 other adequate remedy is available. Therefore, mandamus relief is unavailable. 26 ORDER 27 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a district judge 1 RECOMMENDATION 2 For the foregoing reasons, the Court RECOMMENDS that this action be DISMISSED 3 WITH PREJUDICE. 4 This Findings and Recommendation is submitted to the assigned District Court Judge, 5 pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of 6 Practice for the United States District Court, Eastern District of California. Within twenty-one 7 (21) days after service of the Findings and Recommendation, Petitioner may file written 8 objections with the Court. Such a document should be captioned “Objections to Magistrate 9 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s 10 ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 12 Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 IT IS SO ORDERED. 14 15 Dated: July 12, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27