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


8-23-2005

In Re: Asemani
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3302




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Recommended Citation
"In Re: Asemani " (2005). 2005 Decisions. Paper 657.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/657


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HPS-138                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-3302
                                    ________________


                             IN RE: GHAFOUR ASEMANI,
                                          Petitioner

                       ____________________________________

                       On a Petition for Writ of Mandamus from the
            United States District Court for the Middle District of Pennsylvania
                            (Related to Civ. No. 03-cv-00964)
                       _____________________________________

                        Submitted Under Rule 21, Fed. R. App. Pro.
                                     July 29, 2005

      Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
                           (Filed: August 23, 2005)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              Ghafour Asemani, a/k/a Billy G. Asemani, seeks a writ of mandamus to

compel the United States District Court for the Middle District of Pennsylvania to take

action on his motion for reconsideration. For the reasons that follow, we will deny the

petition.



                                             1
              On June 10, 2003, Asemani filed this action under Bivens v. Six Unknown

Named Agents of the federal Bureau of Narcotics, 403 U.S. 388 (1971) against various

officials and employees of the Federal Bureau of Prisons. Asemani alleged numerous

violations of his civil rights stemming from his incarceration at the Low Security

Correctional Institution at Allenwood, Pennsylvania. On March 11, 2005, after extensive

proceedings, the District Court granted summary judgement in favor of the defendants.

Within ten days, Asemani sought reconsideration asking the District Court to rule on what

he believed was an unresolved claim. An opposition was filed and briefing on the

reconsideration motion was completed on April 25, 2005.

              On July 6, 2005, Asemani filed this mandamus petition alleging that the

District Court’s delay in taking any action on his motion for reconsideration constitutes a

failure to perform its duties.

              A writ of mandamus is an extreme remedy that is invoked only in

extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976).

To justify the use of this extraordinary remedy, a petitioner must show a clear and

indisputable right to the relief sought, Gulfstream Aerospace Corp. v. Mayacamas Corp.,

485 U.S. 271, 289 (1988), and that there are no other adequate means to attain the

requested relief, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). As we

have previously held, the management of its docket is committed to the sound discretion

of the District Court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982).



                                             2
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. Nonetheless, some delays are

so prejudicial that they violate due process and justify granting extraordinary relief. See

Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996); see also Johnson v. Rogers, 917 F.2d

1283, 1285 (10th Cir. 1990) (finding a fourteen-month delay due to a congested docket

impermissible).

              Asemani has not demonstrated in his petition that the delay in this case is so

extraordinary and prejudicial so as to violate due process. We are confident that the

District Court will rule on Asemani’s reconsideration motion without undue delay. The

petition for a writ of mandamus is therefore denied.




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