Elizabeth Harvey v. , 490 F. App'x 490 ( 2013 )

DLD-073 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4196
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In re: ELIZABETH HARVEY,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to M.D. Pa. Civ. No. 3-12-cv-01387)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
December 20, 2012
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: January 3, 2013 )
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OPINION
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PER CURIAM
In July 2012, Elizabeth Harvey, proceeding pro se, initiated a civil suit pursuant to
42 U.S.C. § 1983 in the United States District Court for the Middle District of
Pennsylvania alleging that a Pennsylvania state court judge and non-judicial employees
deprived her of constitutional rights. The District Court, pursuant to its obligation to
review pro se filings under 28 U.S.C. § 1915(e)(2), dismissed Harvey’s complaint
without prejudice for failure to state a claim. Harvey filed a motion for reconsideration
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and the District Court
issued an order instructing the parties that the motion was scheduled for oral arguments.
Harvey did not attend the oral arguments and the District Court denied Harvey’s motion
for reconsideration on November 15, 2012.
Harvey filed a mandamus petition with this Court on November 14, 2012. Harvey
alleges that the District Court failed to adhere to the principles set forth in Oatess v.
Sobolevitch, 914 F.2d 428 (3d Cir. 1990). Harvey contends that Oatess stands for the
proposition that the District Court is prohibited from dismissing a case under 28 U.S.C.
§ 1915 for failure to state claim and that the District Court improperly dismissed a
complaint she filed for failure to state a claim.
Mandamus is a drastic remedy granted only in extraordinary cases. See In re Diet
Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To prevail the petitioner
must establish that she has “no other adequate means” to obtain relief and that she has a
“clear and indisputable” right to issuance of the writ, and the reviewing court must
determine that the writ is appropriate under the circumstances. Id. at 378-79. Mandamus
cannot be used as a substitute for appeal. Id. at 379; see also Madden v. Myers, 102 F.3d
74, 77 (3d Cir. 1996) (“Indeed, a writ of mandamus may not issue if a petitioner can
obtain relief by appeal.”). The regular appeal process for civil cases provides an adequate
means for Harvey to challenge the District Court’s ruling. Present consideration of her
claims would allow Harvey to circumvent the appeals process. Therefore, we will deny
the petition for writ of mandamus.
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