                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2009

In Re: Todd Levon
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1003




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Recommended Citation
"In Re: Todd Levon " (2009). 2009 Decisions. Paper 1412.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1412


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ALD-146                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 09-1003
                                       ___________

                                  IN RE: TODD LEVON,
                                                  Petitioner

                        ____________________________________

                        On a Petition for Writ of Mandamus from the
            United States District Court for the Western District of Pennsylvania
                          (Related to W.D. Pa. Civ. No. 08-00318)
                        ____________________________________

                       Submitted Pursuant to Rule 21, Fed. R. App. P.
                                      April 2, 2009

               Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                                (Opinion filed: May 1, 2009)

                                         _________

                                         OPINION
                                         _________

PER CURIAM

       Todd Levon, a federal prisoner proceeding pro se, filed this mandamus petition

pursuant to 28 U.S.C. § 1651, seeking an order directing the Magistrate Judge to rule on

his motion for preliminary injunction. For the foregoing reasons, we will deny the

petition.

       On November 17, 2008, Levon filed a habeas petition under 28 U.S.C. § 2241 in
the Western District of Pennsylvania requesting that he be placed in the Residential Drug

and Alcohol Treatment Program (“RDAP”). Levon proceeded to file several amendments

to his petition and motions for preliminary injunction. On January 5, 2009, Levon filed

the instant mandamus petition. Levon asserts that he has experienced unreasonable delay

in the adjudication of his motion and that he will suffer irreparable harm if he is not

placed in the RDAP program.

       The writ of mandamus is reserved for the most “extraordinary situations.” DeMasi

v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). In order to ensure that mandamus is

sparingly granted, a petitioner seeking a writ of mandamus must demonstrate that no other

adequate means are available to obtain the desired relief and that the right to issuance of

the writ is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35

(1980) (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting

United States v. Duell, 172 U.S. 576, 582 (1899))).

       District courts have discretion over the management of their dockets. See In re

Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). When a matter is

discretionary, it cannot typically be said that a litigant’s right is “clear and indisputable.”

Allied Chem. Corp., 449 U.S. at 35-36. Nevertheless, a writ of mandamus may be

warranted when a district court’s failure to act is tantamount to a refusal to exercise

jurisdiction. Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). This case does not meet

that standard.



                                               2
       A review of the docket for the underlying proceeding shows that a hearing on

Levon’s request was conducted on March 26, 2009. The minute entry for the hearing

suggests that a Report and Recommendation is forthcoming. We are confident that the

District Court will issue its decision in a timely fashion. Accordingly, we will deny

Levon’s mandamus petition without prejudice.




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