                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2008

In Re: James Talley
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2569




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"In Re: James Talley " (2008). 2008 Decisions. Paper 506.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/506


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
HLD-152                                                             NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2569
                                       ___________

                               IN RE: JAMES TALLEY,
                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
             United States District Court for the District of New Jersey
                            (Related to Civ. No. 04-cv-01146)
                      ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    August 29, 2008

       Before: SCIRICA, Chief Judge, ALDISERT and GARTH, Circuit Judges.

                                (Filed: September 22, 2008)
                                         _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM.

       Pro se petitioner James Talley filed a petition for writ of mandamus in this Court

on June 3, 2008. Although the petition is not entirely clear, it appears that Talley would

like this Court to order the defendants in the underlying district court case (D.N.J. Civ.

No. 04-cv-01146) to “show cause” for their refusal to comply with a district court order

and for their motion for sanctions (which the District Court granted).
       Mandamus is an appropriate remedy in extraordinary circumstances only. See In

re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). Traditionally, it has

“been available to a court of appeals only ‘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.’” Madden v. Myers, 102 F.3d 74, 77 n.3 (3d Cir. 1996) (citing Will v. United

States, 389 U.S. 90, 95 (1967)). To obtain a writ of mandamus, the petitioner must

establish that he has “no other adequate means to attain . . . relief,” and that he has a

“clear and indisputable” right to issuance of the writ. In re Diet Drugs, 418 F.3d at 378-

79. Talley has not established that he has a “clear and indisputable” right to the relief he

requests, and we will thus deny the petition.

       Furthermore, if Talley is actually attempting to appeal from the District Court’s

July 10, 2007 order granting the defendants’ motion for sanctions and/or its September 6,

2007 order granting the defendants’ motion for costs and attorneys’ fees, we first note

that a petition for mandamus “must not be used as a mere substitute for appeal.” Madden,

102 F.3d at 77 (internal citation omitted). Even if we did review the mandamus petition

as an appeal, we would lack jurisdiction to consider it because it was not filed until June

3, 2008—long after the deadline for appealing from the orders had expired. See Fed. R.

App. P. 4(a)(1); Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007).

       Accordingly, we will deny Talley’s petition.




                                                2
