Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-23-2005
In Re: Asemani
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3302
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Recommended Citation
"In Re: Asemani " (2005). 2005 Decisions. Paper 657.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/657
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HPS-138 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3302
________________
IN RE: GHAFOUR ASEMANI,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to Civ. No. 03-cv-00964)
_____________________________________
Submitted Under Rule 21, Fed. R. App. Pro.
July 29, 2005
Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
(Filed: August 23, 2005)
_______________________
OPINION
_______________________
PER CURIAM.
Ghafour Asemani, a/k/a Billy G. Asemani, seeks a writ of mandamus to
compel the United States District Court for the Middle District of Pennsylvania to take
action on his motion for reconsideration. For the reasons that follow, we will deny the
petition.
1
On June 10, 2003, Asemani filed this action under Bivens v. Six Unknown
Named Agents of the federal Bureau of Narcotics, 403 U.S. 388 (1971) against various
officials and employees of the Federal Bureau of Prisons. Asemani alleged numerous
violations of his civil rights stemming from his incarceration at the Low Security
Correctional Institution at Allenwood, Pennsylvania. On March 11, 2005, after extensive
proceedings, the District Court granted summary judgement in favor of the defendants.
Within ten days, Asemani sought reconsideration asking the District Court to rule on what
he believed was an unresolved claim. An opposition was filed and briefing on the
reconsideration motion was completed on April 25, 2005.
On July 6, 2005, Asemani filed this mandamus petition alleging that the
District Court’s delay in taking any action on his motion for reconsideration constitutes a
failure to perform its duties.
A writ of mandamus is an extreme remedy that is invoked only in
extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976).
To justify the use of this extraordinary remedy, a petitioner must show a clear and
indisputable right to the relief sought, Gulfstream Aerospace Corp. v. Mayacamas Corp.,
485 U.S. 271, 289 (1988), and that there are no other adequate means to attain the
requested relief, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). As we
have previously held, the management of its docket is committed to the sound discretion
of the District Court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982).
2
When a matter is discretionary, it cannot typically be said that a litigant’s right is “clear
and indisputable.” Allied Chem. Corp., 449 U.S. at 35-36. Nonetheless, some delays are
so prejudicial that they violate due process and justify granting extraordinary relief. See
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996); see also Johnson v. Rogers, 917 F.2d
1283, 1285 (10th Cir. 1990) (finding a fourteen-month delay due to a congested docket
impermissible).
Asemani has not demonstrated in his petition that the delay in this case is so
extraordinary and prejudicial so as to violate due process. We are confident that the
District Court will rule on Asemani’s reconsideration motion without undue delay. The
petition for a writ of mandamus is therefore denied.
3