DLD-079                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-4528
                                      ___________

                           IN RE: ARTHUR D’AMARIO,
                                          Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                          (Related to Civ. No. 1-12-cv-06098)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                 December 28, 2012

               Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                            (Opinion filed: January 14, 2013)
                                 _________________

                                      OPINION
                                  _________________

PER CURIAM

       Arthur D’Amario petitions for a writ of mandamus directing the United States

District Court for the District of New Jersey to act on his motions to proceed in forma

pauperis and for a temporary restraining order (TRO). For the reasons below, we will

deny the petition.

       D’Amario is serving three years of supervised release after completing a sentence

of 84 months in prison for threatening a federal judge. See United States v. D’Amario,
330 F. App’x 409 (3d Cir. 2009). On October 1, 2012, D’Amario filed a civil rights

complaint against a probation officer. D’Amario requested that: (1) the Defendant be

temporarily and permanently restrained from removing him from his hotel before

October 17, 2012; (2) the Government buy a plane ticket so that he may visit his mother

in Arizona; and (3) the Defendant be temporarily and permanently restrained from

banishing him from Rhode Island and be ordered to arrange affordable housing for

D’Amario. Attached to his complaint was a motion for a TRO requesting that Defendant

be restrained from removing him from his hotel and be ordered to pay D’Amario’s rent

until October 17, 2012. A few days later, on October 6, 2012, D’Amario withdrew his

motion for a TRO.

       On November 16th, D’Amario filed another motion for a TRO requesting that the

Defendant be restrained from evicting him from his hotel and from interfering with his

visit to his mother. On November 30th, D’Amario filed an amended complaint. He

again requested that the Defendants be temporarily and permanently restrained from

interfering with his travel to Arizona. He also requested that the defendants be

temporarily and permanently restrained from acting on false and privileged

communications divulged by his attorneys to law enforcement.

       On December 19, 2012, D’Amario filed this mandamus petition requesting that we

order the District Court to adjudicate his motions to proceed in forma pauperis and for a

TRO. 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
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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). Generally, mandamus relief is 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.” Roche v. Evaporated Milk Ass’n, 319

U.S. 21, 26 (1943).

       Here, D’Amario does not have an alternative remedy to direct the District Court to

act on his pending motions. However, the delay in this case has not risen to the level of

an extraordinary circumstance. We are confident that the District Court will act on

D’Amario’s motion to proceed in forma pauperis in a timely manner and, if it grants the

motion, screen the complaint under 28 U.S.C. § 1915(e)(2), and adjudicate the TRO. 1

Accordingly, we will deny the mandamus petition.




1
       Normally, we might be concerned that a request for a TRO had not been acted on
for several weeks. (While D’Amario states that the motions have been pending since
September 27th, he withdrew his motion for a TRO and filed another on November 16th.)
Here, however, D’Amario is challenging the conditions of his supervised release and has
already filed a counseled motion in his criminal case to transfer his supervised release to
Rhode Island. The motion was denied because Rhode Island did not concur in the
transfer.
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