Teczon-Marin v. Dembin ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 JOSE LUIS TECZON-MARIN, CASE NO.: 20-CV-1493-LAB and Hon. Larry A. Burns 8 FEDERAL DEFENDERS OF SAN Courtroom 14A 9 DIEGO, INC., Date: TBD 10 T ime: TBD Petitioners, 11 ORDER DISMISSING PETITION FOR 12 v. WRIT OF MANDAMUS 13 MITCHELL D. DEMBIN, 14 UNITED STATES MAGISTRATE JUDGE, 15 16 Respondent; 17 and 18 UNITED STATES, Real party in interest 19 20 To a litigant with a hammer, every adverse order looks like a nail. Petitioner 21 Jose Luis Teczon-Marin, armed with the hammer of recent sister-court decisions 22 barring Department of Homeland Security agents from making arrests in state 23 courthouses, seeks a Writ of Mandamus directing Judge Mitchell D. Dembin to 24 grant Teczon’s Motion to Prevent Unlawful Civil Arrest. See United States v. 25 Teczon-Marin, Case No. 19-mj-23096-MDD-1, Dkt. 42, 43. But the challenged 26 order isn’t the nail Teczon hoped for. Judge Dembin’s denial isn’t at odds with 27 those non-binding decisions—he denied the Motion because it was untimely. 28 1 Because the Court perceives no error, the Petition for a Writ of Mandamus is 2 DISMISSED. 3 A Writ of Mandamus is an “extraordinary remedy” justified only in 4 “exceptional circumstances amounting to a judicial usurpation of power.” Bauman 5 v. U.S. Dist. Ct., 557 F.2d 650, 654 (9th Cir. 1977) (internal marks and citations 6 omitted). Teczon doesn’t establish any such usurpation. Instead, the Writ Petition 7 skirts the decisive timeliness issue, offering weakly that the docket doesn’t reflect 8 the motion filing deadline and pointing out that Judge Dembin granted leave to file 9 additional motions. But this is only half the story. Judge Dembin only granted leave 10 to file “additional motions indicated by new discovery or investigation” after the 11 January 21, 2020 motion hearing. See Teczon-Marin, Dkt. 23-1 at 41 (emphasis 12 added). The Motion fell outside these express limits—Teczon doesn’t dispute that 13 his Motion “was not based on new facts or new law.” Teczon-Marin, Dkt. 40. So 14 Judge Dembin properly exercised discretion in denying it as untimely. See, e.g., 15 U.S. v. Torres, 908 F.2d 1417, 1424 (9th Cir. 1990). 16 Even if the Motion had been timely, Teczon isn’t entitled to a Writ of 17 Mandamus. For one thing, Teczon hasn’t been harmed at all, much less “damaged 18 or prejudiced in a way not correctable on appeal.” Bauman, 557 F.2d at 654. Teczon 19 imagines that a Writ of Protection would prevent DHS agents from arresting him. 20 But a Writ of Protection can’t do that—it only notifies the reader of a privilege 21 whose existence and applicability are wholly independent of the Writ. See, e.g., 22 Bridges v. Sheldon, 7 F. 17, 44 (D. Vt. 1880) (Writ of Protection “neither establishes 23 nor enlarges the privilege, but merely sets it forth”); Ex parte M’Neil, 6 Mass. 264 24 (1810) (holder of Writ of Protection still amenable to civil arrest if the holder is not 25 entitled to claim privilege). Teczon wasn’t “damaged or prejudiced” by the refusal 26 to issue a document that establishes no privilege against arrest and holds no power 27 to prevent it, so a Writ of Mandamus isn’t necessary to correct any harm. See 28 Bauman, 557 F.2d at 654. 1 Alternatively, construing the Motion as a request for injunction, it was 2 || properly denied. First, denial of the Motion won’t irreparably harm Teczon. If he is 3 || taken into Immigration and Customs Enforcement’s custody, he will be accorded 4 || due process. And second, Judge Dembin couldn’t enjoin Teczon-Marin’s 5 || arrest: Magistrate Judges are not authorized by law to issue injunctive relief. 6 || 28 U.S.C. § 636(b)(1)(A). 7 There was no error here so the Petition for a Writ of Mandamus is 8 || DISMISSED. 10 || Dated: August 10, 2020 (sou Ae ( Zgwr i United States Disirict Court Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28