2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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### HLD - 161 (July 2010) NOT PRECEDENTIAL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 Rul e 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 mandam us relief, we2



### 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 leav e 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 pe titioner 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, includin g those seeking injunctive relief filed by Brown. There is simply no indication that the District Court has failed to exercise its jurisdiction by permitting A undue delay. @

For the foregoing reasons, the petition for a writ of mandamus will be denied.