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Derrick Brown v. , 396 F. App'x 858 ( 2010 )


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  • HLD-161 (July 2010)                                      NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 10-3101
________________
IN RE: DERRICK LAKEITH BROWN,
Petitioner
____________________________________
On Petition for a Writ of Mandamus from the
United States District Court for the
Middle District of Pennsylvania
(Related to M. D. Pa. Civ. No. 10-cv-00293)
_____________________________________
Submitted Under Rule 21, Fed. R. App. P.
July 30, 2010
Before: MCKEE, Chief Judge, SCIRICA AND WEIS, CIRCUIT JUDGES
(Opinion Filed October 7, 2010)
___________
OPINION
___________
PER CURIAM.
Derrick Brown has filed a mandamus petition pursuant to 28 U.S.C. ' 1651,
wherein he apparently seeks to compel the District Court for the Middle District of
Pennsylvania to order service of process on his complaint and to issue a show cause order
on his request for injunctive relief. Finding no basis for granting mandamus relief, we
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will deny the petition.
Brown filed a complaint on February 9, 2010, against more than thirty-five
defendants pursuant to Bivens v. Six Unknown Federal Narcotics Agents,
    403 U.S. 388
    (1971). His complaint was accompanied by a motion for leave to proceed in forma
pauperis and followed by several requests for injunctive relief. In an order entered on
April 21, 2010, the District Court granted Brown in forma pauperis status and directed the
United States Marshal=s Service to serve the complaint on the named defendants. From a
review of the District Court docket and a motion by the United States for an extension of
time to respond to Brown=s complaint, it appears that B in accordance with the District
Court=s order B the Clerk issued summons on April 21, 2010 and the Marshal=s Service
served the individual defendants and the United States Attorney=s Office a few weeks
later. The District Court recently granted the extension motion and defendants= response
to Brown=s complaint is due to be filed on or before August 9, 2010. It is thus obvious
that Brown=s petition for writ of mandamus is moot to the extent he seeks to compel the
District Court to order service of process.
We further conclude that mandamus relief is not warranted with respect to
Brown=s pending requests for injunctive relief. The writ of mandamus is an
extraordinary remedy. To justify the Court=s use of this remedy, a petitioner must
demonstrate that he has a clear and indisputable right to issuance of the writ. Kerr v.
United States District Court,
    426 U.S. 394
    , 403 (1976); DeMasi v. Weiss,
    669 F.2d 114
    ,
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117 (3d Cir. 1982). Although an appellate court may issue a writ of mandamus on the
ground that undue delay is tantamount to a failure to exercise jurisdiction, Madden v.
Myers,
    102 F.3d 74
    , 79 (3rd Cir. 1996), the manner in which a court controls its docket is
discretionary. In re Fine Paper Antitrust Litigation,
    685 F.2d 810
    , 817 (3d Cir. 1982),
cert. denied,
    459 U.S. 1156
     (1983). As noted, the District Court has proceeded
appropriately in the underlying civil action. We are confident that it will continue to do
so as it entertains the parties= submissions, including those seeking injunctive relief filed
by Brown. There is simply no indication that the District Court has failed to exercise its
jurisdiction by permitting Aundue delay.@
For the foregoing reasons, the petition for a writ of mandamus will be
denied.
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