                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2005

In Re: Bronson v. Horn
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2670




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Recommended Citation
"In Re: Bronson v. Horn" (2005). 2005 Decisions. Paper 658.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/658


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DPS-280                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      No. 05-2670
                                    ________________

                             IN RE: PURCELL BRONSON,
                                                       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. 03-cv-00130)
                            __________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. Pro.
                                    June 16, 2005

               Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                                 (Filed: August 23, 2005 )
                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       Petitioner Purcell Bronson and several other state prisoners filed suit in United

States District Court for the Middle District of Pennsylvania in January 2003. In an order

entered on November 12, 2004, the District Court granted the plaintiffs leave to file a

second amended complaint on or before December 20, 2004, or suffer dismissal of the

case. In an order entered on January 5, 2005, the District Court found that the plaintiffs

had not filed their amended complaint by the deadline, and thus had not complied with
the court’s order. The court ordered the case closed. All outstanding motions were

denied as moot. In an order entered on January 19, 2005, the District Court reopened the

case after learning that plaintiff Michael Grazier had not received the court’s orders due

to a clerical error. Grazier was given a new deadline of February 17, 2005 to file his

second amended complaint.

       On February 7, 2005, Bronson filed a notice of appeal from the January 5 order,

which was docketed in this Court at C.A. No. 05-1388. Bronson was advised by the

Legal Division of our Clerk’s Office that his appeal was premature, because an order

entered by a District Court that determines the rights and liabilities of fewer than all of the

parties is not immediately appealable unless the District Court directs the entry of

judgment pursuant to Federal Rule of Civil Procedure 54(b).

       Also on February 7, 2005, Bronson filed a motion for reconsideration and a motion

for an extension of time to file a motion for reconsideration. In an order entered on

February 28, 2005, the District Court denied the motion for reconsideration as untimely,

and denied the motion for an extension of time. In a second order entered on the same

day, the District Court ordered the case closed once again insofar as Grazier had failed to

file his amended complaint by the deadline. The case thus became ripe for appeal on

February 28, 2005.

       Instead of filing a new notice of appeal, or paying the appellate docketing fees in

the appeal docketed at C.A. No. 05-1388 (the appeal was procedurally terminated by the

Clerk on March 31, 2005 when the appellate docketing fees were not paid), and
submitting written jurisdictional argument that appeal No. 05-1388 ripened upon the

District Court’s February 28, 2005 order, Cape May Greene, Inc. v. Warren, 698 F.2d

179, 184-85 (3d Cir. 1983) (holding that premature notice of appeal, filed after

disposition of some claims, but before entry of final judgment, will ripen upon court’s

disposal of remaining claims), Bronson, on May 24, 2005, filed the instant petition for

writ of mandamus.

       Bronson appears to complain that there are outstanding matters in the case below

that the District Court should be required to decide. There are not, and we thus conclude

that Bronson is not entitled to mandamus relief because he has not shown that the right to

issuance of this extraordinary form of relief is clear and indisputable. Madden v. Myers,

102 F.3d 74, 79 (3d Cir. 1996). The case is over in the district court and all outstanding

motions have been decided. Bronson also asserts in his mandamus petition that he made

significant efforts to comply with the District Court’s November 12 order granting the

plaintiffs leave to file a second amended complaint on or before December 20, 2004.

This allegation of error is the kind that can be addressed on appeal and thus is not a

proper basis for a mandamus petition. Helstoski v. Meanor, 442 U.S. 500, 505-06 (1979).

       Because the mandamus petition is evidently bona fide, Bronson is not subject to

the fee provisions of the Prisoner Litigation Reform Act. Madden, 102 F.3d at 78-79.

       We will deny the petition for writ of mandamus.
