Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-1-2009
In Re: Todd Levon
Precedential or Non-Precedential: Non-Precedential
Docket No. 09-1003
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Recommended Citation
"In Re: Todd Levon " (2009). 2009 Decisions. Paper 1412.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1412
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ALD-146 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1003
___________
IN RE: TODD LEVON,
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. 08-00318)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
April 2, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: May 1, 2009)
_________
OPINION
_________
PER CURIAM
Todd Levon, a federal prisoner proceeding pro se, filed this mandamus petition
pursuant to 28 U.S.C. § 1651, seeking an order directing the Magistrate Judge to rule on
his motion for preliminary injunction. For the foregoing reasons, we will deny the
petition.
On November 17, 2008, Levon filed a habeas petition under 28 U.S.C. § 2241 in
the Western District of Pennsylvania requesting that he be placed in the Residential Drug
and Alcohol Treatment Program (“RDAP”). Levon proceeded to file several amendments
to his petition and motions for preliminary injunction. On January 5, 2009, Levon filed
the instant mandamus petition. Levon asserts that he has experienced unreasonable delay
in the adjudication of his motion and that he will suffer irreparable harm if he is not
placed in the RDAP program.
The writ of mandamus is reserved for the most “extraordinary situations.” 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
(1980) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting
United States v. Duell, 172 U.S. 576, 582 (1899))).
District courts have discretion over the management of their dockets. See In re
Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). 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. Nevertheless, a writ of mandamus may be
warranted when a district court’s failure to act is tantamount to a refusal to exercise
jurisdiction. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). This case does not meet
that standard.
2
A review of the docket for the underlying proceeding shows that a hearing on
Levon’s request was conducted on March 26, 2009. The minute entry for the hearing
suggests that a Report and Recommendation is forthcoming. We are confident that the
District Court will issue its decision in a timely fashion. Accordingly, we will deny
Levon’s mandamus petition without prejudice.
3