2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-3-2011

In Re: David Womack

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2840

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Recommended Citation

"In Re: David Womack " (2011). 2011 Decisions. Paper 268.

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DLD-028 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2840

___________

IN RE: DAVID LEE WOMACK,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the District of New Jersey

(Related to D. Ct. Civ. Nos. 10-cv-02932 and 11-cv-02884)

____________________________________

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

October 27, 2011

Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion filed November 3, 2011)

_________

OPINION

_________

PER CURIAM

David Womack, a New Jersey prisoner, petitions for a writ of mandamus 

compelling the District Court to screen his two civil rights complaints under the in forma 

pauperis (“IFP”) statute, consolidate the two actions, and appoint counsel to represent 

him. For the reasons that follow, we will deny the petition.

I

In June 2010, Womack, who claims to be illiterate with a developmental 

disability, filed in the District Court a civil rights complaint alleging that prison officials 
2

at the New Jersey State Prison assaulted him and then retaliated against him for filing 

grievances. Womack’s action was administratively closed sometime in 2011 because he 

had not paid the filing fee or submitted an IFP application. In September 2011, the 

District Court reopened the case, denied without prejudice Womack’s pending motion for

appointment of counsel, and reclosed the case, advising Womack that he could seek 

reopening within 30 days and either pay the filing fee or seek IFP status. On October 3, 

2011, he filed an IFP application, which remains pending.

In May 2011, Womack filed in the District Court a second civil rights complaint 

alleging that the conditions of his confinement are unconstitutional and that New Jersey 

State Prison officials have denied him access to the courts by failing to provide legal 

services that accommodate Womack’s disability. In August 2011, the District Court 

administratively closed the case and denied without prejudice Womack’s pending IFP 

application, which was incomplete. The District Court then afforded Womack an 

opportunity to reopen his case and submit a complete IFP application. On October 3, 

2011, Womack filed an IFP application, which remains pending.

In July 2011, Womack filed the instant petition for a writ of mandamus. After 

granting Womack an extension of time to file an IFP application, the Clerk closed the 

case in September because Womack did not submit a complete application. On October 

11, 2011, Womack filed a motion to reopen the petition and a motion to proceed IFP.

II

At the outset, we will grant Womack’s motion to reopen this case, which was 
3

administratively closed for failure to pay the filing fee or submit a complete IFP 

application. Womack has since submitted a complete IFP application, which we 

conclude demonstrates his entitlement to proceed without prepayment of the filing fee. 

Pursuant to 28 U.S.C. § 1915(a)(1), this Court may allow a litigant to proceed without 

prepayment of fees if he submits an affidavit stating the nature of the claim and a belief 

that he is entitled to redress, and a statement of his assets. The decision to grant or deny 

an IFP application is based solely on the economic eligibility of the petitioner. See

Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976). Womack’s application indicates that 

he has virtually no assets and receives between $27 and $32 each month from his prison 

employment. Accordingly, we will grant his motion to proceed in forma pauperis.1

Mandamus is an “extraordinary remedy” that we award only when a petitioner 

demonstrates, among other things, a “clear and indisputable” right to relief. In re 

Pressman-Gutman Co., 459 F.3d 383, 398-99 (3d Cir. 2006). Mandamus lies only when 

there is no other remedy to obtain the relief sought. See Mallard v. U.S. Dist. Court for 

S. Dist. of Iowa, 490 U.S. 296, 309 (1989). Womack has plainly failed to satisfy this 

high standard. 

Womack first asks us to compel the District Court to screen his complaints under 

the IFP statute, 28 U.S.C. § 1915(e)(2), and the Prison Litigation and Reform Act, 28 

 

1

 We note that because Womack’s mandamus petition is evidently bona fide, he is not 

subject to certain fee provisions of the Prisoner Litigation Reform Act. See Madden 

v. Myers, 102 F.3d 74, 78-79 (3d Cir. 1996).
4

U.S.C. § 1915A, so that the complaints may be served on the defendants. Womack’s 

petition suggests that the District Court’s failure to screen his complaints has been so 

delayed as to amount to a failure to exercise jurisdiction, which may serve as a basis for 

issuing a writ of mandamus. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). We 

disagree. We note that progress in Womack’s civil actions was delayed primarily 

because of his failure to provide complete IFP applications. He has recently attempted to 

remedy that problem, and we are confident that the District Court will resolve his 

pending motions in a timely fashion.

Womack also asks that we compel the District Court to consolidate his two civil 

actions and appoint counsel to represent him. However, he has not shown either an 

indisputable right to those forms of relief or that other remedies are not available. 

Indeed, Womack’s request is premature because his District Court cases have not been 

reopened. If the cases are reopened, Womack can seek consolidation in the District 

Court, which has broad discretion to consolidate matters involving common questions of 

law or fact. See Fed. R. Civ. P. 42(a); Enter. Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 

1994). Likewise, Womack can seek appointment of counsel in the District Court if his 

cases are reopened and he is afforded IFP status. See § 1915(e)(1).

Accordingly, we will deny Womack’s mandamus petition.