2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-2010

In Re: Roy Davis

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1332

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: Roy Davis " (2010). 2010 Decisions. Paper 1483.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1483
1

HLD-108 (March 2010) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 10-1332 

________________

IN RE: ROY STEVE DAVIS, 

 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. 08-cv-01272)

_____________________________________

Submitted Under Rule 21, Fed. R. App. P.

March 31, 2010

Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges. 

Opinion Filed: April 19, 2010 

__________

 OPINION

____________

PER CURIAM.

Roy Steve Davis, a federal inmate, has filed a petition for a writ of

mandamus in which he asks this Court to compel the Honorable Thomas I. Vanaskie of

the United States District Court for the Middle District of Pennsylvania, and Warden T.R.

Sniezek at FCI-Schuylkill in Pennsylvania, to “perform their official duties.” Ptn. at 1. In
2

particular, Davis asks that we direct Judge Vanaskie and Warden Sniezek to “expung[e]

all disciplinary hearings and restor[e] all good conduct time taken at each hearing[]

regarding Incident Report 1720977.” Id. at 3. We will deny the petition.

As a threshold matter, we lack jurisdiction to grant the relief requested with

respect to Warden Sniezek. Davis styles his mandamus petition as filed under 28 U.S.C.

§ 1361, but that provision confers original jurisdiction only upon district courts “to

compel an officer or employee of the United States or any agency thereof to perform a

duty owed to the plaintiff.” 28 U.S.C. § 1361. This Court lacks original jurisdiction over

a petition to compel action by Warden Sniezek.

While Davis has invoked only § 1361, we will liberally construe his pro se

petition as filed under 28 U.S.C. § 1651 insofar as he seeks to compel action by the

District Judge. Section 1651 confers jurisdiction on this Court to issue a writ of

mandamus “in aid of” our jurisdiction. 28 U.S.C. § 1651(a). The district court docket

reflects that Davis filed a habeas petition under 28 U.S.C. § 2241 in the Middle District of

Pennsylvania to challenge a disciplinary hearing that resulted in a recommendation that he

be transferred from FCI-Schuylkill to another facility. On September 22, 2009, the

District Court dismissed the petition without prejudice on the ground that Davis had

failed to exhaust administrative remedies. This Court dismissed Davis’s appeal of that

ruling because he failed to pay the appellate filing fee. (C.A. No. 09-4278, order entered

February 1, 2010.)
Given that the underlying matter in the District Court has been dismissed,

there is no pending action over which a writ of mandamus might aid our jurisdiction. See

United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981) (explaining that, “[b]efore

entertaining” a petition for a writ of mandamus, “we must identify a jurisdiction that the

issuance of the writ might assist”). Further, mandamus is not a substitute for an appeal,

In re Kensington Intern. Ltd., 353 F.3d 211, 219 (3d Cir. 2003), and thus Davis cannot

use this proceeding to seek review of issues that he failed to pursue through an appeal. 

Accordingly, the request to compel action from the District Judge must be denied.

For these reasons, we will deny the petition for a writ of mandamus. 

3