ALD-013                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-3382
                                      ___________

                            IN RE: ABEL RODRIGUEZ,
                                                Petitioner
                      ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                   (Related to E.D. Pa. Crim. No. 2-10-cr-00809-PD)
                      ____________________________________

                   Submitted Pursuant to Rule 21, Fed. R. App. P.
                                 October 18, 2013
         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                            (Opinion filed: October 25, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Abel Rodriguez is charged with identity theft offenses pursuant to 18 U.S.C.

§ 1028. After a medical examination was conducted, the District Court deemed

Rodriguez incompetent to stand trial and committed him to the custody of the Attorney

General pursuant to 18 U.S.C. § 4241(d).1 The Government moved for a judicial order


1
  Many of the filings that may be relevant to this matter are under seal in the District
Court. We therefore have relied upon the Government’s Response in Opposition to the
Motion of the Defendant’s Daughter for Appointment as Guardian Ad Litem for
Incompetent Father, ECF No. 112, for most of the background.
permitting the involuntary administration of medication after doctors reported that

Rodriguez, who had refused treatment, might be restored to competency if he received

anti-psychotic medication. The District Court denied the motion on October 17, 2012,

and instead granted Rodriguez’s request for an administrative hearing pursuant to

Washington v. Harper, 494 U.S. 210 (1990), which generally requires an independent

psychiatrist to determine whether involuntary medication is necessary because an inmate

is dangerous to himself or others. On February 1, 2013, the District Court noted that the

Harper hearing had not yet occurred and ordered the Bureau of Prisons (“BOP”) to hold it

within 45 days. In response to a request from the BOP, the District Court extended the

time to March 29, 2013 to allow the evaluation of Rodriguez to be completed. The

District Court docket reflects that two status reports and a forensic evaluation regarding

Rodriguez have been filed since the March 29th deadline. In August 2013, Rodriguez

filed a mandamus petition alleging that the District Court ordered a discharge hearing in

February 2013 and that the BOP had not yet filed an evaluation or report. Rodriguez

contends that his due process rights have been violated, and he seeks an order compelling

the District Court to hold a hearing “to determine the need for his incarceration.”

       Mandamus is a remedy appropriate only in extraordinary circumstances. Madden

v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). To demonstrate that mandamus is appropriate,

a petitioner must establish that he has a “clear and indisputable” right to the issuance of

the writ and that he has “no other adequate means to obtain the desired relief.” Id.

Rodriguez has failed to satisfy this standard. First, he has not shown a “clear and
                                              2
indisputable” right to relief because his factual assertions appear to be incorrect.

Rodriguez claims that the District Court ordered a discharge hearing in February 2013,

but the docket reflects that a hearing regarding the administration of medication was

ordered. Even assuming that Rodriguez is referring to that hearing, the fact that status

reports and a forensic evaluation have been filed since the deadline set by the District

Court casts doubt on his claim that no evaluation or report regarding his continued

commitment has been filed. Furthermore, Rodriguez has not shown that he has no other

means to obtain relief. We note that Rodriguez is represented by counsel in the District

Court, and he has not persuasively explained why any concerns regarding his

commitment cannot be raised by counsel, particularly given the upcoming hearing

scheduled for December 16, 2013, for which the court has ordered Rodriguez to be

present.

       For these reasons, we will deny the petition.




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