BLD-053                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-4238
                                       ___________

                            IN RE: MICHAEL FORREST,
                                                   Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Middle District of Pennsylvania
                         (Related to D.C. Civ. No. 10-cv-01505)
                      ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                  November 24, 2010

        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                                (filed: December 10, 2010 )
                                         _________

                                         OPINION
                                         _________

PER CURIAM

       Michael Forrest has filed a petition for a writ of mandamus directing the United

States Marshals to serve his complaint filed in the District Court. For the reasons below,

we will deny the petition.

       Forrest filed a complaint in the District Court for the Eastern District of

Pennsylvania. The District Court granted Forrest’s motion to proceed in forma pauperis

and transferred the matter to the District Court for the Middle District of Pennsylvania.
After the transfer, Forrest filed a motion in the District Court for the Middle District

requesting an order directing the United States Marshal to effect service of the complaint

on the defendants. The District Court has not yet acted on the motion. On October 15,

2010, Forrest filed his mandamus petition.

       A writ of mandamus should be issued only in extraordinary circumstances. See

Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). Determining whether an extraordinary

circumstance exists requires a two part inquiry. First, it must be established that there is

no alternative remedy or other adequate means of relief. Second, a petitioner must

demonstrate a clear and indisputable right to the relief sought. Kerr v. United States

District Court, 426 U.S. 394, 403 (1976). A writ is not a substitute for an appeal. In re

Kensington Intern. Ltd., 353 F.3d 211, 219 (3d Cir. 2003).

       If a plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, the District

Court must order service by a United States Marshal or deputy marshal. See Fed. R. Civ.

P. 4(c)(3). However, because Forrest is a prisoner, the District Court must first screen the

case under § 1915A to determine whether the action is frivolous or malicious, fails to

state a claim, or seeks monetary relief against a defendant who is immune. The District

Court has not indicated that it has performed this screening yet. Thus, Forrest cannot

show a clear and indisputable right to an order directing service of the complaint.

       Moreover, we note that it is not clear that Forrest is entitled to proceed in forma

pauperis in the District Court. In his application to proceed in forma pauperis dated May

14, 2010, Forrest checked “no” for the question that asked, “Have you, prior to the filing
                                              2
of the complaint in this action and while a prisoner as that term is defined in 28 U.S.C.

§1915(h), brought 3 or more actions or appeals in a court of the United States that were

dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be

granted.” However, Forrest has had three actions or appeals dismissed as frivolous:

Forrest v. Fulcomer, C.A. No. 88-1036 (3d Cir. March 18, 1988); Forrest v. Vaughn,

2:95-cv-05994-WD (E.D. Pa. October 11, 1995); Forrest v. Meyers, 3:01-cv-02065-

ARC-KH (M.D. Pa. Dec. 14, 2001). Moreover, he has known this since August 2004,

when we denied his application to proceed in forma pauperis in another appeal and listed

these cases. See Forrest v. Varner, C.A. No. 03-2911 (3d Cir. August 30, 2004).

       Under § 1915(g), a prisoner who has three such dismissals may not proceed in

forma pauperis unless he is in imminent danger of serious physical injury at the time he

files the complaint. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001). It

appears that in granting Forrest’s motion to proceed in forma pauperis, the District Court

for the Eastern District of Pennsylvania may not have been aware that Forrest had three

“strikes” and, consequently, did not determine whether Forrest was in imminent danger.1

The District Court for the Middle District of Pennsylvania may wish to reconsider

whether Forrest is entitled to proceed in forma pauperis. We express no opinion on the

merits of his application.

       1
        Forrest’s lack of candor in his application to proceed in forma pauperis is
       unacceptable. If, while a prisoner, he files a civil action or appeal in a federal
       court, he must inform the court that he has had three cases dismissed as frivolous
       and that he is required to demonstrate imminent danger of serious physical injury
       in order to proceed in forma pauperis.
                                             3
       For the above reasons, we will deny the petition for mandamus. The Clerk is

directed to send a copy of this opinion to the District Court for the Middle District of

Pennsylvania.




                                              4
