Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-16-2008
In Re: Marvin John
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3502
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Recommended Citation
"In Re: Marvin John " (2008). 2008 Decisions. Paper 355.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/355
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HLD-157 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3502
___________
IN RE: MARVIN J. COBB,
Petitioner
____________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Civ. No. 07-cv-00085)
________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
September 30, 2008
Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Opinion filed: October 16, 2008)
____________
OPINION
____________
PER CURIAM.
Marvin Cobb, a former federal prisoner proceeding pro se, seeks a writ of
mandamus in connection with a civil rights action that he filed in the United States
District Court for the Western District of Pennsylvania. We will deny the mandamus
petition.
1
In April 2007, Cobb filed a motion to proceed in forma pauperis in District
Court and submitted a complaint alleging discrimination at his prison job based on his
disabilities. Cobb claimed violations of the Americans with Disabilities Act and other
federal statutes. In December 2007, a Magistrate Judge granted the motion to proceed in
forma pauperis and ordered that Cobb’s complaint be filed. The Magistrate Judge also
terminated two motions for summary judgment that Cobb had filed, noting that neither
was a proper summary judgment motion.1 In June 2008, the Magistrate Judge ordered the
United States Marshall to serve Cobb’s complaint on the defendants.
In his mandamus petition, Cobb complains that the District Court has not
compelled the defendants to answer his complaint. He asks us to grant a default judgment
in his favor.
The writ of mandamus has traditionally been used 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. In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000)
(citations omitted). The writ is a drastic remedy that is seldom issued and its use is
discouraged. Id. A petitioner must show that he has no other means to attain the desired
relief and that the right to a writ is clear and indisputable. Id. at 141.
1
In the first motion, filed in June 2007, Cobb sought a default judgment because the
defendants had not answered his complaint. In the second motion, filed in August 2007,
Cobb sought a temporary release from prison for medical treatment. The latter motion
appears to be related to another action Cobb had filed alleging deliberate indifference to
his medical needs.
2
Applying these standards, Cobb is not entitled to relief. Cobb has not
sought any relief in the District Court since the Magistrate Judge ordered the United
States Marshal to serve his complaint. Cobb may move the District Court for a default
judgment based on the defendants’ failure to answer his complaint.2 To the extent the
complaint was not served, Cobb may move the District Court to enforce its order
directing service of the complaint. Because Cobb has other means to attain the desired
relief, mandamus relief is not warranted.
Accordingly, we will deny the petition for a writ of mandamus.
2
Cobb’s previous motion for a default judgment was premature because his complaint
had yet to be filed.
3