Johnnie Reynaga v. Sharon M. Cammisa Steve White M. Cedillo Michael T. Garcia

971 F.2d 414 Johnnie REYNAGA, Plaintiff-Appellant, v. Sharon M. CAMMISA; Steve White; M. Cedillo; Michael T. Garcia, Defendants-Appellees. No. 91-15468. United States Court of Appeals, Ninth Circuit. Submitted May 14, 1992. * Decided Aug. 3, 1992. Johnnie Reynaga, pro se. No appearance for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before: FERGUSON, REINHARDT, and KOZINSKI, Circuit Judges. REINHARDT, Circuit Judge: 1 Appellant, a California state prisoner, filed a pro se action in federal court under 42 U.S.C. § 1983 against the defendants--a public defender, a district attorney, a deputy district attorney, and a state trial judge--seeking damages and injunctive relief on the ground that the defendants had deprived him of his constitutional right to a fair trial. The matter was referred to a magistrate. 1 The magistrate found that three of the defendants were immune from an award of damages and that Reynaga's request for injunctive relief--his early release from prison--was precluded because his sole federal avenue for such a remedy was via a writ of habeas corpus. See Marchetti v. Bitterolf, 968 F.2d 963, 966-67…

Appellant, a California state prisoner, filed a pro se action in federal court under 42 U.S.C. § 1983 against the defendants — a public defender, a district attorney, a deputy district attorney, and a state trial judge — seeking damages and injunctive relief on the ground that the defendants had deprived him of his constitutional right to a fair trial. The matter was referred to a magistrate. 1 The magistrate found that three of the defendants were immune from an award of damages and that Reynaga’s request for injunctive relief — his early release from prison — was precluded because his sole federal avenue for such a remedy was via a writ of habeas corpus. See Marchetti v. Bitterolf, 968 F.2d 963, 966-67 (9th Cir.1992).

The magistrate ordered the § 1983 action “stayed until plaintiff exhausts his state remedies.” The magistrate directed that “THIS ACTION WILL NOT PROCEED FURTHER UNLESS AND UNTIL HE [Reynaga] NOTIFIES THE COURT THAT HE HAS EXHAUSTED STATE REMEDIES." (emphasis in original). Finally, the magistrate stated that “[t]he Clerk of the court is directed to administratively close the file in this case” and commanded that “[t]his action shall not proceed further unless and…

concurring:

While I join the court’s opinion, I write separately because I find the jurisdictional question somewhat closer than my colleagues acknowledge. Not every case where our jurisdiction is in doubt may be converted into a mandamus petition; and not every mandamus petition may be granted. See NORML v. Mullen, 828 F.2d 536 (9th Cir.1987) (declining to issue writ after converting an appeal into mandamus petition). Both steps are exceptional and require unusual and compelling circumstances, lest our jurisdictional rules be rendered meaningless. See Hartland v. Alaska Airlines, 544 F.2d 992, 1004 (9th Cir. 1976) (Wallace, J., concurring) (appeal may be recharacterized as petition for mandamus only when “either serious hardship or prejudice to the appellants would have resulted if the issues raised had not been resolved prior to trial, or the orders would not have been reviewable at all on appeal from a final judgment”).

The mere fact that the magistrate here exceeded his jurisdiction does not, standing alone, justify mandamus, much less conversion of an appeal into a mandamus petition. In the ordinary case of a litigant represented by counsel, I would be content to dis *419…