In Re: Vivian Clarke

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

8-8-2006

In Re: Vivian Clarke
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3014

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Recommended Citation
"In Re: Vivian Clarke " (2006). 2006 Decisions. Paper 604.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/604

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HPS- 95 (July 2006) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 06-3014
________________

IN RE: VIVIAN R. CLARKE,
Petitioner
____________________________________

On a Petition for Writ of Mandamus from the
United States District Court for the District of Delaware
(Related to D. Del. No. 05-cv-00647)
_____________________________________

Submitted Under Rule 21, Fed. R. App. P.
July 14, 2006
Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
Filed: August 8, 2006
_______________________

OPINION
_______________________

PER CURIAM

Pro se petitioner Vivian R. Clarke filed a petition for writ of mandamus.

Clarke seeks review of the order entered by the United States District Court for the

District of Delaware denying his motion to appoint counsel and dismissing his complaint

without prejudice. We will deny the mandamus petition.

In 2005, Clarke filed a pro se civil rights action pursuant to 42 U.S.C. §

1981(a) and § 1985(3). The District Court dismissed Clarke’s complaint without

prejudice on December 15, 2005, and gave Clarke until January 17, 2006 to file an

amended complaint. Instead of filing an amended complaint, Clarke filed a document
entitled “Emergency Motion” on January 19, 2006, which the District Court docketed as a

Notice of Appeal. On June 12, 2006, this Court issued a briefing notice in that appeal.

See C.A. No. 06-1431. Prior to receiving our briefing notice, Clarke filed the instant

mandamus petition on June 7, 2006. See C.A. 06-3014.

The remedy of mandamus is reserved for the most extraordinary of

circumstances. DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). In order to ensure

that mandamus is sparingly granted, a petitioner seeking a writ of mandamus must

demonstrate that no other adequate means are available to obtain the desired relief, and

that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v.

Daiflon, Inc., 449 U.S. 33, 35, 101 S. Ct.188, 190 (1980) (per curiam) (quotation

omitted). A mandamus petition is not a substitute for an appeal; if a petitioner can obtain

relief by an ordinary appeal, a court will not issue the writ. See In re Ford Motor Co., 110

F.3d 954, 957 (3d Cir. 1997).

Here, Clarke has an alternative means of challenging the District Court’s

order: the appeal which is already pending before this Court. In any event, Clarke’s

petition provides no basis on which to grant mandamus relief. Accordingly, the petition

for a writ of mandamus is denied.