Opinion
Civ S-05-0875 MCE KJM PS.
October 3, 2005
FINDINGS RECOMMENDATIONS
A status conference was set before the undersigned for September 21, 2005. Plaintiff failed to appear.
As provided by Federal Rule of Civil Procedure 4(m), the court may dismiss an action where service of summons is not made within 120 days after the filing of the complaint. In the order setting status conference, filed May 3, 2005, plaintiff was cautioned that this action could be dismissed if service was not timely completed. This action was filed May 3, 2005. On May 19, 2005, plaintiff filed a document indicating he had sent waivers of service of summons to defendants. No waivers have been filed, however, and plaintiff has not yet served defendants with summons in compliance with Federal Rule of Civil Procedure 4.
There is no apparent basis for subject matter jurisdiction in this action. The alleged bases of subject matter jurisdiction are 28 U.S.C. § 1331 and 28 U.S.C. § 1361. With respect to federal question jurisdiction under section 1331, it is not evident that plaintiff's claims arise under the Constitution, laws or treaties of the United States. With respect to mandamus jurisdiction under section 1361, jurisdiction lies only over actions to compel officers of the United States. Defendants Schwarzenegger and Lockyer are not officers of the United States. With respect to defendant Marshall, who is Chief Judge of the United States District Court for the Central District of California, mandamus jurisdiction should not be exercised in the circumstances alleged here. See Panko v. Rodak, 606 F.2d 168, 171 n. 6 (7th Cir. 1979) ("[I]t seems axiomatic that a lower court may not order the judges or officers of a higher court to take an action.")
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).