Arthur D'Amario, III v. ( 2013 )

DLD-079 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-4528
___________
IN RE: ARTHUR D’AMARIO,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to Civ. No. 1-12-cv-06098)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
December 28, 2012
Before: AMBRO, SMITH and CHAGARES, Circuit Judges
(Opinion filed: January 14, 2013)
_________________
OPINION
_________________
PER CURIAM
Arthur D’Amario petitions for a writ of mandamus directing the United States
District Court for the District of New Jersey to act on his motions to proceed in forma
pauperis and for a temporary restraining order (TRO). For the reasons below, we will
deny the petition.
D’Amario is serving three years of supervised release after completing a sentence
of 84 months in prison for threatening a federal judge. See United States v. D’Amario,
330 F. App’x 409 (3d Cir. 2009). On October 1, 2012, D’Amario filed a civil rights
complaint against a probation officer. D’Amario requested that: (1) the Defendant be
temporarily and permanently restrained from removing him from his hotel before
October 17, 2012; (2) the Government buy a plane ticket so that he may visit his mother
in Arizona; and (3) the Defendant be temporarily and permanently restrained from
banishing him from Rhode Island and be ordered to arrange affordable housing for
D’Amario. Attached to his complaint was a motion for a TRO requesting that Defendant
be restrained from removing him from his hotel and be ordered to pay D’Amario’s rent
until October 17, 2012. A few days later, on October 6, 2012, D’Amario withdrew his
motion for a TRO.
On November 16th, D’Amario filed another motion for a TRO requesting that the
Defendant be restrained from evicting him from his hotel and from interfering with his
visit to his mother. On November 30th, D’Amario filed an amended complaint. He
again requested that the Defendants be temporarily and permanently restrained from
interfering with his travel to Arizona. He also requested that the defendants be
temporarily and permanently restrained from acting on false and privileged
communications divulged by his attorneys to law enforcement.
On December 19, 2012, D’Amario filed this mandamus petition requesting that we
order the District Court to adjudicate his motions to proceed in forma pauperis and for a
TRO. A writ of mandamus should be issued only in extraordinary circumstances. See
Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). Determining whether an extraordinary
2
circumstance exists requires a two-part inquiry. First, it must be established that there is
no alternative remedy or other adequate means of relief. Second, a petitioner must
demonstrate a clear and indisputable right to the relief sought. Kerr v. United States
District Court, 426 U.S. 394, 403 (1976). Generally, mandamus relief is used to “confine
an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Ass’n, 319
U.S. 21, 26 (1943).
Here, D’Amario does not have an alternative remedy to direct the District Court to
act on his pending motions. However, the delay in this case has not risen to the level of
an extraordinary circumstance. We are confident that the District Court will act on
D’Amario’s motion to proceed in forma pauperis in a timely manner and, if it grants the
motion, screen the complaint under 28 U.S.C. § 1915(e)(2), and adjudicate the TRO. 1
Accordingly, we will deny the mandamus petition.
1
Normally, we might be concerned that a request for a TRO had not been acted on
for several weeks. (While D’Amario states that the motions have been pending since
September 27th, he withdrew his motion for a TRO and filed another on November 16th.)
Here, however, D’Amario is challenging the conditions of his supervised release and has
already filed a counseled motion in his criminal case to transfer his supervised release to
Rhode Island. The motion was denied because Rhode Island did not concur in the
transfer.
3