DLD-028 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2840
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IN RE: DAVID LEE WOMACK,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D. Ct. Civ. Nos. 10-cv-02932 and 11-cv-02884)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
October 27, 2011
Before: AMBRO, JORDAN and VANASKIE, Circuit Judges
(Opinion filed November 3, 2011)
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OPINION
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PER CURIAM
David Womack, a New Jersey prisoner, petitions for a writ of mandamus
compelling the District Court to screen his two civil rights complaints under the in forma
pauperis (“IFP”) statute, consolidate the two actions, and appoint counsel to represent
him. For the reasons that follow, we will deny the petition.
I
In June 2010, Womack, who claims to be illiterate with a developmental
disability, filed in the District Court a civil rights complaint alleging that prison officials
at the New Jersey State Prison assaulted him and then retaliated against him for filing
grievances. Womack’s action was administratively closed sometime in 2011 because he
had not paid the filing fee or submitted an IFP application. In September 2011, the
District Court reopened the case, denied without prejudice Womack’s pending motion for
appointment of counsel, and reclosed the case, advising Womack that he could seek
reopening within 30 days and either pay the filing fee or seek IFP status. On October 3,
2011, he filed an IFP application, which remains pending.
In May 2011, Womack filed in the District Court a second civil rights complaint
alleging that the conditions of his confinement are unconstitutional and that New Jersey
State Prison officials have denied him access to the courts by failing to provide legal
services that accommodate Womack’s disability. In August 2011, the District Court
administratively closed the case and denied without prejudice Womack’s pending IFP
application, which was incomplete. The District Court then afforded Womack an
opportunity to reopen his case and submit a complete IFP application. On October 3,
2011, Womack filed an IFP application, which remains pending.
In July 2011, Womack filed the instant petition for a writ of mandamus. After
granting Womack an extension of time to file an IFP application, the Clerk closed the
case in September because Womack did not submit a complete application. On October
11, 2011, Womack filed a motion to reopen the petition and a motion to proceed IFP.
II
At the outset, we will grant Womack’s motion to reopen this case, which was
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administratively closed for failure to pay the filing fee or submit a complete IFP
application. Womack has since submitted a complete IFP application, which we
conclude demonstrates his entitlement to proceed without prepayment of the filing fee.
Pursuant to 28 U.S.C. § 1915(a)(1), this Court may allow a litigant to proceed without
prepayment of fees if he submits an affidavit stating the nature of the claim and a belief
that he is entitled to redress, and a statement of his assets. The decision to grant or deny
an IFP application is based solely on the economic eligibility of the petitioner. See
Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976). Womack’s application indicates that
he has virtually no assets and receives between $27 and $32 each month from his prison
employment. Accordingly, we will grant his motion to proceed in forma pauperis.1
Mandamus is an “extraordinary remedy” that we award only when a petitioner
demonstrates, among other things, a “clear and indisputable” right to relief. In re
Pressman-Gutman Co., 459 F.3d 383, 398-99 (3d Cir. 2006). Mandamus lies only when
there is no other remedy to obtain the relief sought. See Mallard v. U.S. Dist. Court for
S. Dist. of Iowa, 490 U.S. 296, 309 (1989). Womack has plainly failed to satisfy this
high standard.
Womack first asks us to compel the District Court to screen his complaints under
the IFP statute, 28 U.S.C. § 1915(e)(2), and the Prison Litigation and Reform Act, 28
1
We note that because Womack’s mandamus petition is evidently bona fide, he is not
subject to certain fee provisions of the Prisoner Litigation Reform Act. See Madden
v. Myers, 102 F.3d 74, 78-79 (3d Cir. 1996).
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U.S.C. § 1915A, so that the complaints may be served on the defendants. Womack’s
petition suggests that the District Court’s failure to screen his complaints has been so
delayed as to amount to a failure to exercise jurisdiction, which may serve as a basis for
issuing a writ of mandamus. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). We
disagree. We note that progress in Womack’s civil actions was delayed primarily
because of his failure to provide complete IFP applications. He has recently attempted to
remedy that problem, and we are confident that the District Court will resolve his
pending motions in a timely fashion.
Womack also asks that we compel the District Court to consolidate his two civil
actions and appoint counsel to represent him. However, he has not shown either an
indisputable right to those forms of relief or that other remedies are not available.
Indeed, Womack’s request is premature because his District Court cases have not been
reopened. If the cases are reopened, Womack can seek consolidation in the District
Court, which has broad discretion to consolidate matters involving common questions of
law or fact. See Fed. R. Civ. P. 42(a); Enter. Bank v. Saettele, 21 F.3d 233, 235 (8th Cir.
1994). Likewise, Womack can seek appointment of counsel in the District Court if his
cases are reopened and he is afforded IFP status. See § 1915(e)(1).
Accordingly, we will deny Womack’s mandamus petition.
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