Gougher v. Mnuchin ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 MARLIN LEE GOUGHER, 4 Case No. 19-cv-07217-YGR (PR) Petitioner, 5 ORDER OF DISMISSAL WITH LEAVE v. TO AMEND 6 STEVE MNUCHIN, 7 Respondent. 8 9 I. INTRODUCTION 10 Petitioner, a federal prisoner, has filed a document entitled, “File Order and Notice of 11 Revocation Motion to Compel,” which the Court will construe as a pro se petition for a writ of 12 mandamus. Dkt. 1. He has filed a motion for leave to proceed in forma pauperis. Dkts. 4, 17. 13 He has also filed two other motions entitled, “Request to Issue Summons” and “Ex Parte Motion 14 to Appoint Marshal to Serve Summons and Complaint.” Dkts. 12, 13. 15 II. DISCUSSION 16 A. Standard of Review 17 Federal courts must engage in a preliminary screening of cases in which prisoners seek 18 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 19 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 20 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 22 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 23 Cir. 1990). 24 B. Legal Claims 25 Petitioner seeks a writ of mandamus, though the exact nature of his filing is difficult to 26 discern. See Dkt. 1 at 1-2. Petitioner states as follows: 27 On August 6, 2019, I, Marlin Lee Gougher, mailed an Order and under my previous Trust are final. 1 I am requesting the court to file this order and notice of revocation 2 (Exhibit A) and compel the Secretary of Treasury to comply with the 30 day confirmation that all transactions under my previous trust are 3 final as they have not answered by the 30 days. 4 Id. at 1 (brackets added). Attached as Exhibit A to the petition is a document drafted by Petitioner 5 entitled, “Order and Notice of Revocation.” Id. at 2. It states as follows: 6 I, Marlin Lee Gougher, having hereby sent “Notice of Interest” to the President of the United States declaring my legal right to be a Private 7 Citizen and transferring my Trustee, thereby the Trusteeship, from the Treasury Department of the United States to the President of the 8 United States on June 13, 2018, d[o] hereby revoke my mother[’s] . . . and my father’s . . . expressed or implied permission 9 and including any expressed or implied permission by me after my eighteenth birthday . . . to the United States federal government of any 10 of it[s] agencies, to conduct any financial transactions by the Treasury Department of the United States [on] my behalf to be retroactive to 11 June 13, 2018. 12 I need confirmation by 30 days that all transactions under my previous trust are final. 13 Id. at 2 (brackets added). 14 The federal mandamus statute provides that “[t]he district courts shall have original 15 jurisdiction of any action in the nature of mandamus to compel an officer or employee of the 16 United States or any agency thereof to perform a duty owed to the [petitioner].” 28 U.S.C. § 1361. 17 Mandamus relief is an extraordinary remedy, however. It is available to compel a federal officer 18 to perform a duty only under certain circumstances. See Fallini v. Hodel, 783 F.2d 1343, 1345 19 (9th Cir. 1986). 20 Federal district courts are without power to issue mandamus to direct state courts, state 21 judicial officers, or other state officials in the performance of their duties. A petition for a writ of 22 mandamus to compel a state court or official to take or refrain from some action is frivolous as a 23 matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991) 24 (imposing no filing in forma pauperis order); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 25 1966) (attorney contested disbarment and sought reinstatement). 26 Mandamus relief is only available to compel an officer of the United States to perform a 27 duty if: (1) the [petitioner]’s claim is clear and certain; (2) the duty of the officer is 1 nondiscretionary, ministerial and so plainly prescribed as to be free from doubt; and (3) no other 2 adequate remedy is available. See Agua Caliente Tribe v. Sweeney, 932 F.3d 1207, 1216 (9th Cir. 3 2019). Petitioner alleges that he has sent a “Notice of Interest” to the President of the United 4 States declaring his “legal right to be a Private Citizen and transferring [his] Trustee, thereby the 5 Trusteeship, from the Treasury Department of the United States to the President of the United 6 States on June 13, 2018.” Dkt. 1 at 2. Based upon these allegations, Petitioner seems to be 7 referring to a trust that has been transferred to the President of the United States, but he does not 8 give any more details than the information above. Such a claim, being based upon outlandish and 9 entirely implausible factual allegations, seems to be frivolous and certainly not “clear and certain.” 10 See Agua Caliente Tribe, 932 F.3d at 1216. Therefore, mandamus relief would not be not 11 available, and the claim would have to be dismissed. 12 Accordingly, the petition for a writ of mandamus is dismissed with leave to amend, and 13 Petitioner will be provided one opportunity to amend to address the legal standards set forth 14 above, if possible. Dkt. 1. Petitioner should also provide more information concerning the relief 15 he seeks. 16 III. CONCLUSION 17 1. Petitioner’s motion to proceed in forma pauperis is GRANTED. Dkts. 2, 17. 18 2. Petitioner’s motions entitled, “Request to Issue Summons” and “Ex Parte Motion to 19 Appoint Marshal to Serve Summons and Complaint,” are DENIED as premature, and the denial is 20 without prejudice to refiling if Petitioner files a valid amended petition. Dkts. 12, 13. 21 3. The petition for a writ of mandamus is DISMISSED with leave to amend. Dkt. 1. 22 The amended petition must be filed within twenty-eight (28) days of the date this order is filed 23 and must include the caption and civil case number used in this Order—Case No. C 19-7217—and 24 the words “AMENDED PETITION FOR WRIT OF MANDAMUS” on the first page. Failure to 25 amend within the designated time will result in the dismissal of this case. 26 4. It is the Petitioner’s responsibility to prosecute this case. Petitioner must keep the 27 Court informed of any change of address by filing a separate paper with the clerk headed “Notice 1 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 2 Civil Procedure 41(b). 3 5. This Order terminates Docket Nos. 1, 4, 12, 13, and 17. 4 IT IS SO ORDERED. 5 || Dated: April 20,2020 6 YVONNE GONZALEZ ROGERS 7 nited States District Judge 8 9 10 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28