Derrick Lakeith Brown v. Mary D'Andrea , 395 F. App'x 806 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1925
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DERRICK LAKEITH BROWN,
Appellant
v.
MARY E. D’ANDREA, U.S.D.C., Clerk; COREY WIMMER,
U.S.D.C., Clerk; LYNDA HANNICK, U.S.D.C., Clerk;
U.S.P. LEWISBURG MAIL ROOM CLERKS
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 10-cv-00501
(Honorable Richard P. Conaboy)
________________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2010
Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges.
(Filed: October 4, 2010)
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OPINION OF THE COURT
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PER CURIAM.
On March 5, 2010, Derrick Lakeith Brown filed a pro se petition for a writ of
mandamus in the District Court. The petition referred to two civil rights cases that Brown
had initiated in District Court. See Brown v. Kustoff, et al., 3:CV-10-200 and Brown v.
Bledsoe, et al., 3:CV-10-2563. The court had dismissed both cases without prejudice in
January and February 2010, respectively. In the mandamus petition, Brown stated that he
had filed notices of appeal in both cases, and claimed that defendants conspired to
obstruct and interfere with his appellate rights. He speculated that their actions were
retaliatory and suggested that they had destroyed his appeals. The District Court noted
that the docket showed that Brown had indeed filed timely notices of appeal in each case,
which were still pending. As such, he could not show that he had “no other adequate
means” to obtain the relief desired. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).
Thus, on March 25, 2010, the District Court denied the petition as meritless. Brown,
proceeding pro se, filed a timely appeal.
This Court denied Brown’s motion to proceed in forma pauperis (“IFP”) in his
appeal from the dismissal of his first civil rights case. See C.A. 10-1929. Then, in May
2010, we dismissed the appeal for failure to pay the filing fee. In June 2010, we
dismissed Brown’s appeal in the second case, for failure to file a motion for imminent
danger or to pay the filing fee. C.A. 10-1235. Brown filed a motion to reconsider and a
for an extension of time to file the imminent danger motion, which we construed as a
motion to re-open the appeal. Brown has not yet filed the imminent danger motion.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a
district court’s order dismissing a mandamus petition. See Harmon Cove Condominium
Ass’n v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987).
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Upon review, we agree with the District Court that Brown was not entitled to
mandamus relief. Mandamus is a drastic remedy available only in extraordinary cases,
see In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005), as the
petitioner must demonstrate that he has “no other adequate means” to obtain the relief
desired and a “clear and indisputable” right to issuance of the writ. Madden, 102 F.3d at
79. A writ is not a substitute for an appeal. In re Kensington Int’l Ltd., 353 F.3d 211,
219 (3d Cir. 2003). Brown’s appeals in his two civil rights cases were pending at the
time he filed his petition for mandamus. As such, he cannot demonstrate that he had no
other means to obtain the desired relief. Accordingly, we will affirm the District Court’s
judgment.
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