2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-22-2008

In Re: James Talley

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2569

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Recommended Citation

"In Re: James Talley " (2008). 2008 Decisions. Paper 506.

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HLD-152 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-2569

___________

 IN RE: JAMES TALLEY,

 Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the District of New Jersey 

(Related to Civ. No. 04-cv-01146)

____________________________________

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

August 29, 2008

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

(Filed: September 22, 2008)

_________

OPINION OF THE COURT

_________

PER CURIAM.

Pro se petitioner James Talley filed a petition for writ of mandamus in this Court

on June 3, 2008. Although the petition is not entirely clear, it appears that Talley would

like this Court to order the defendants in the underlying district court case (D.N.J. Civ.

No. 04-cv-01146) to “show cause” for their refusal to comply with a district court order

and for their motion for sanctions (which the District Court granted).
2

Mandamus is an appropriate remedy in extraordinary circumstances only. See In

re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). Traditionally, it has

“been available to a court of appeals only ‘to confine an inferior court to a lawful exercise

of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to

do so.’” Madden v. Myers, 102 F.3d 74, 77 n.3 (3d Cir. 1996) (citing Will v. United

States, 389 U.S. 90, 95 (1967)). To obtain a writ of mandamus, the petitioner must

establish that he has “no other adequate means to attain . . . relief,” and that he has a

“clear and indisputable” right to issuance of the writ. In re Diet Drugs, 418 F.3d at 378-

79. Talley has not established that he has a “clear and indisputable” right to the relief he

requests, and we will thus deny the petition.

Furthermore, if Talley is actually attempting to appeal from the District Court’s

July 10, 2007 order granting the defendants’ motion for sanctions and/or its September 6,

2007 order granting the defendants’ motion for costs and attorneys’ fees, we first note

that a petition for mandamus “must not be used as a mere substitute for appeal.” Madden,

102 F.3d at 77 (internal citation omitted). Even if we did review the mandamus petition

as an appeal, we would lack jurisdiction to consider it because it was not filed until June

3, 2008—long after the deadline for appealing from the orders had expired. See Fed. R.

App. P. 4(a)(1); Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007). 

Accordingly, we will deny Talley’s petition.