2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-15-2009

In Re: Ronald Johnson

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2201

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Recommended Citation

"In Re: Ronald Johnson " (2009). 2009 Decisions. Paper 995.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/995
BLD-195 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2201

___________

IN RE: RONALD G. JOHNSON,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the District of Delaware

(D. Del. Civil No. 06-cv-00240)

District Judge: Honorable Sue L. Robinson

(D.Del. Civ. No. 08-cv-00196)

District Judge: Honorable Joseph J. Farnan, Jr.

(D.Del. Civ. No. 08-cv-00479)

District Judge: Honorable Joseph J. Farnan, Jr.

____________________________________

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

May 21, 2009

Before: McKEE, FISHER and CHAGARES, Circuit Judges

(Filed: July 15, 2009)

_________

OPINION

_________

PER CURIAM

In April 2009, Ronald G. Johnson filed this pro se mandamus petition seeking an

order that the District Court grant him a jury trial and schedule depositions of the officers

involved in the incident that gave rise to a 28 U.S.C. § 1983 civil rights complaint he filed
2

in 2006. In May 2009, Johnson filed an amendment to his petition for a writ of

mandamus, seeking orders from this Court directing a second Judge in the same District

Court to schedule trial dates in two additional and unrelated civil rights cases.

The Supreme Court has held that “the remedy of mandamus is a drastic one, to be

invoked only in extraordinary situations...only exceptional circumstances amounting to a

judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” 

Kerr v. United States District Court, 426 U.S. 394, 402 (1976). In the habeas corpus

context, at least, we have explained that “at some point, delay by the district court could

become so excessive as to warrant the issuance of a writ of mandamus.” Hassine v.

Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998).

I.

In Johnson v. Alfree, et. al., D.Del. 06-cv-240, Johnson seeks an order from this

Court directing the District Court to order the scheduling of depositions of the police

officer defendants. In January 2009, Johnson filed a Notice of Deposition requesting that

the Court order the defendant officers to submit to depositions. The District Court issued

a scheduling order on April 21, 2008, ordering defendants to respond to Johnson’s

discovery requests. With respect to the requested depositions, the Order stated: “in lieu of

taking depositions (D.I. 73), plaintiff may submit, on or before May 19, 2008, no more

than ten (10) written questions per defendant, which questions will be submitted to such

identified deponents by the court at a time and place to be designated by subsequent
3

order.” To date, Johnson has not submit any written questions for the defendants to the

District Court.

Johnson also seeks an order directing the District Court to schedule a jury trial. 

Johnson filed a demand for a jury trial with the District Court on April 16, 2009. A mere

ten days elapsed between Johnson’s demand for a jury trial and his filing of the instant

petition for a writ of mandamus. Prior to Johnson’s demand, the District Court issued a

scheduling order setting a deadline for the filing of dispositive motions, and on April 29,

2009, the District Court ordered the matter referred to the Federal Civil Panel so that a

lawyer could be appointed to represent Johnson pro bono. In an accompanying order, the

District Court scheduled a telephone conference for July 30, 2009, so that final

preparations for trial could be made. As the District Court is proceeding appropriately

with Johnson’s claims, no extraordinary circumstances are present here. Accordingly, we

will deny the petition for a writ of mandamus as to the claims relating to Johnson v. 

Alfree, et. al.

II.

In Johnson v. Bingnear, et. al., D.Del. 08-cv-196, Johnson alleges that he was

subject to a false arrest and malicious prosecution, and that his civil rights were violated

as a result. The Complaint was filed on April 7, 2008. Discovery has not yet begun and

no scheduling order has been issued to date. On April 29, 2009, Johnson filed a demand

for a jury trial moving the District Court to set a trial date. A mere nine days elapsed
4

between Johnson’s demand for a jury trial and his filing of the amendment to his petition

for a writ of mandamus. Given that Johnson’s demand that the District Court schedule a

trial date was filed so recently, we do not find that there has been a delay that warrants the

issuance of a writ of mandamus as to this case. We are confidant that the District Court

will promptly proceed by issuing a scheduling order. Should, however, no scheduling

order issue in the next ninety days, Johnson may submit a new petition for a writ of

mandamus at that time.

III.

In Johnson v. 6 Unidentified City of Wilmington Police Officers, D.Del. 08-cv479, initiated by Johnson on August 1, 2008, he complains that his Fourth Amendment

rights were violated when police officers entered his home without permission or a

warrant and that the arresting officers used excessive force when they arrested him. The

procedural history of this case mirrors that of the procedural history in Johnson v.

Bingnear, et. al.. Accordingly, we again conclude that there has been no delay that

warrants the issuance of a writ of mandamus as to this case. We are equally confidant

that the District Court will promptly proceed by issuing a scheduling order in this matter. 

Johnson may, however, submit a new petition for a writ of mandamus if no scheduling

order has been issued within ninety days of this opinion.