2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-7-2010

In Re: Derrick Brown

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3101

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Derrick Brown " (2010). 2010 Decisions. Paper 462.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/462
1

HLD-161 (July 2010) NOT PRECEDENTIAL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 
2

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, 
3

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.