HLD-087 (January 2011)                                             NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                         No. 10-4299
                                         ___________

                        IN RE: MICHAEL CURTIS REYNOLDS,
                                                  Petitioner
                        ____________________________________

                       On a Petition for Writ of Mandamus from the
            United States District Court for the Middle District of Pennsylvania
                      (Related to M.D. Pa. Civ. No. 4-10-cv-01514)
                       ____________________________________

                   Submitted Pursuant to Rule 21, Fed. R. App. P.
                                 January 31, 2011
          Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges

                              (Opinion filed : March 22, 2011)
                                         _________

                                          OPINION
                                          _________

PER CURIAM.

              `Michael Curtis Reynolds, a federal prisoner convicted in 2007 of various

terrorism-related offenses, requests a writ of mandamus requiring the District Court to

take judicial notice of all the facts he asserted in his civil case before the District Court.

We will deny Reynolds’s petition.

              In the civil action underlying the instant mandamus petition, Reynolds

                                               1
sought compensatory and punitive damages from two FBI agents because he was

allegedly falsely arrested and maliciously prosecuted based on those agents’ false

statements. The District Court dismissed the complaint pursuant to 28 U.S.C. § 1915(g)

and determined that the action was also subject to dismissal under Heck v. Humphrey,

512 U.S. 477 (1994), insofar as the alleged unconstitutional prosecution would imply the

invalidity of Reynolds’s 2007 federal conviction. Reynolds appealed.

              While his appeal was pending, Reynolds filed the instant petition for

mandamus, requesting that this Court order the District Court to take judicial notice of all

of the facts alleged in his complaint and hold an evidentiary hearing on the issue.1 He

also filed motions in the District Court requesting that the District Court take judicial

notice of certain facts or consider those facts admitted. It appears from those motions

that Reynolds believed he was essentially entitled to a default judgment because the FBI

agents had not responded to his complaint, regardless of the fact that they had never been

served given the District Court’s disposition of the matter. We ultimately dismissed

Reynolds’s appeal because it lacked legal merit.

              “We have the power to issue a writ of mandamus pursuant to 28 U.S.C. §

1651(a), in exceptional cases where the traditional bases for jurisdiction do not apply.”

In re Pressman-Gutman Co., 459 F.3d 383, 398 (3d Cir. 2006) (quotations omitted).


       1
        Since the instant petition pertains solely to Reynolds’s civil case, we will not
       consider his request that we mandate a hearing pursuant to Hazel-Atlas Glass Co.
       v. Hartford-Empire Co., 322 U.S. 238 (1944), in his criminal case.
                                              2
Mandamus is a “drastic and extraordinary remedy” available only in “exceptional

circumstances amounting to a judicial usurpation of power, or a clear abuse of

discretion.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (citation

omitted). It “is not a substitute for appeal and . . . will not be granted if relief can be

obtained by way of our appellate jurisdiction.” In re Chambers Dev. Co., 148 F.3d 214,

226 (3d Cir. 1998). The party seeking mandamus must establish an absence of other

adequate means to obtain the requested relief, a “clear and indisputable” right to the writ,

and that issuance of the writ is appropriate under the circumstances. In re Pressman-

Gutman Co., 459 F.3d at 399.

              Mandamus is not appropriate here because it is apparent that Reynolds’s

petition, which was filed while his appeal was pending, is in essence a second appeal

seeking to force the District Court to entertain a lawsuit it had already deemed subject to

dismissal. Furthermore, nothing in Reynolds’s petition establishes a clear and

indisputable right to the extraordinary remedy he seeks. Accordingly, we will deny his

petition for mandamus.




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