IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 28, 2009
MICHAEL GONZALES, PETITIONER,
HAMILTON, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DISMISSING PETITION FOR WRIT OF MANDATE, WITH PREJUDICE, AND DIRECTING CLERK OF THE COURT TO CLOSE ACTION
Michael Gonzales, a state prisoner proceeding pro se and in forma pauperis, filed this petition for writ of mandate on December 13, 2006. The petition describes the problems petitioner is encountering trying to file and exhaust inmate appeals so that he may file a civil suit. Petitioner seeks an order compelling prison officials to comply with the regulations governing inmate appeals and issue a third level decision on his appeals grieving his package, mail, and excessive force issues. Petitioner cites to Wright v. State, 122 Cal.App.4th 659, 667-68 (Cal. App. 3d 2004) for the proposition that "[t]he remedy for an unreasonable delay is not a civil suit for damages but a writ of mandate ordering the Department to perform its duty by completing the review."
Pursuant to 28 U.S.C. § 1361, district courts have "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." "Mandamus is an extraordinary remedy . . . [and] is appropriately issued only when (1) the plaintiff's claim is clear and certain; (2) the defendant official's duty to act is ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994) (internal citations and quotations omitted).
This Court has no jurisdiction over state officials. 28 U.S.C. § 1651; see also Demos v. United States Dist. Court for E. Dist. Of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991). Therefore, the petition must be denied. Because neither the failure to process appeals nor delays in processing appeals rise to the level of a constitutional violation, granting petitioner leave to amend to file a civil rights complaint in this action would be futile.*fn1 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001).
Accordingly, the petition for writ of mandate, filed December 13, 2006, is HEREBY DISMISSED, with prejudice, and the Clerk of the Court shall close this action.
IT IS SO ORDERED.