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AMENDED GLD-076 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-4259

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IN RE: WAYNE PETTAWAY,

Petitioner

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On a Petition for Writ of Mandamus from the

United States District Court for the Western District of Pennsylvania

(Related to W.D. Pa. Civ. No. 11-cv-00158)

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Submitted Pursuant to Rule 21, Fed. R. App. P.

December 22, 2011

Before: FUENTES, GREENAWAY, JR., and STAPLETON, Circuit Judges

(Opinion file: January 12, 2012 )

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OPINION

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PER CURIAM

Wayne Pettaway filed this pro se petition for a writ of mandamus asking us to 

compel certain actions in a civil matter currently pending in the District Court for the 

Western District of Pennsylvania. For the following reasons, we will deny the petition.

I.

In the civil action underlying this mandamus petition, Pettaway sued the State 

Correctional Institution at Albion, where he is incarcerated, and the “Department of 
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Correction Camp Hill,” claiming that they improperly deducted certain funds from his 

prison account. Before filing his complaint, he moved for a temporary restraining order 

to prevent a “retaliatory” transfer to another prison. The case was assigned to Magistrate 

Judge Baxter, who denied the motion without prejudice to Pettaway’s “right to file for 

injunctive relief in the future if harm is imminent.”1

Once his complaint was docketed, Pettaway moved for appointment of counsel, 

primarily based on his claim that he suffers from a mental impairment. Magistrate Judge 

Baxter denied the motion, finding counsel unwarranted under Tabron v. Grace, 6 F.3d 

147 (3d Cir. 1993). Additionally, Magistrate Judge Baxter denied Pettaway’s two 

motions for summary judgment as premature because the defendants had not yet been 

served with the complaint. Pettaway thereafter filed a mandamus petition with this 

Court, asking that we compel Magistrate Judge Baxter to appoint him counsel, prevent 

any retaliatory transfer, grant him summary judgment, and correct an error on the docket. 

The defendants have since been served and moved to dismiss Pettaway’s complaint on 

the basis that they are entitled to sovereign immunity and because Pettaway failed to state 

a claim.

II.

Mandamus is a “drastic and extraordinary remedy,” justifiable only in 

“exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse 

of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 

 

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The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).
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(2004) (quotations and citations omitted). To obtain relief, a petitioner must establish 

that no other means of relief is adequate, a “clear and indisputable” right to the relief, and 

that issuance of the writ is appropriate under the circumstances. In re Pressman-Gutman 

Co., 459 F.3d 383, 399 (3d Cir. 2006). 

Pettaway is not entitled to a writ of mandamus compelling entry of summary 

judgment in his favor because Magistrate Judge Baxter did not clearly err in denying his 

motions as premature. Now that the defendants have been served, we anticipate that, if 

the complaint is not dismissed, Pettaway will refile for summary judgment after 

discovery concludes, or at some other appropriate time, and that the relevant issues will 

be litigated then. To the extent Pettaway seeks to compel the issuance of a temporary 

restraining order to prohibit his transfer to another prison, he has not shown that he has 

no other means for relief (as Magistrate Judge Baxter denied his motion without 

prejudice) or that he has a clear and indisputable right to the writ. 

Nor is Pettaway entitled to a writ of mandamus compelling appointment of 

counsel. If Pettaway disagrees with the Magistrate Judge’s resolution of his motion, he 

may raise it on appeal to this Court after a final order is issued. In re Chambers Dev. Co., 

148 F.3d 214, 226 (3d Cir. 1998) (“[M]andamus is not a substitute for appeal and . . . will 

not be granted if relief can be obtained by way of our appellate jurisdiction.”); Smith-Bey 

v. Petsock, 741 F.2d 22, 25-26 (3d Cir. 1984) (order denying motion for counsel is 

nonappealable interlocutory order). Furthermore, the error on the docket identified in 

Pettaway’s petition has since been corrected, so the petition is moot as to that issue. 
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For the foregoing reasons, we will deny Pettaway’s petition for a writ of 

mandamus. Pettaway’s motion for appointment of counsel is denied. See Tabron, 6 F.3d 

at 155-56.