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Yacub Avicenna Mcclendon v. Warden Virga

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 16, 2012

YACUB AVICENNA MCCLENDON, PETITIONER,
v.
WARDEN VIRGA, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed a petition for writ of mandamus. Petitioner alleges that he has not received adequate medical care for diabetes. Petitioner requests that the court order prison officials to provide him with adequate medical care.

28 U.S.C. § 1651(a), pursuant to which petitions for writs of mandate are brought, does not invest a federal court with the power to compel performances of a state court, judicial officer, or another state official's duties under any circumstances. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (11th Amendment prohibits federal district court from ordering state officials to conform their conduct to state law). Mandamus relief under 28 U.S.C. § 1651(a) is only available to compel an officer of the United States to perform a duty, and only under extraordinary circumstances. Cheney v. U.S. Dist. Court for the Dist. Of Columbia, 542 U.S. 367, 380-81 (2004). Accordingly, the undersigned does not have the authority to order the relief sought in the petition for writ of mandamus.

Because petitioner's claims are improperly brought in a petition for writ of mandate, the petition is dismissed. However, because petitioner's claims concern conditions of confinement, petitioner is granted the opportunity to file a complaint pursuant to 42 U.S.C. § 1983. The Clerk of the Court is directed to send petitioner the form for a civil rights complaint.

Petitioner has not filed an in forma pauperis affidavit or paid the required filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). Petitioner will be provided the opportunity either to submit the appropriate affidavit in support of a request to proceed in forma pauperis or to submit the appropriate filing fee.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The petition is dismissed with thirty days to file a civil rights complaint; failure to comply with this order will result in a recommendation of dismissal of this action;

2. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis on the form provided by the Clerk of Court, or the appropriate filing fee; petitioner's failure to comply with this order will result in the dismissal of this action; and

3. The Clerk of the Court is directed to send petitioner an Application to Proceed In Forma Pauperis By a Prisoner and the form for a civil rights complaint pursuant to 42 U.S.C. § 1983.

20120316

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