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


10-2-2008

Weldon v. US Atty MD PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3657




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"Weldon v. US Atty MD PA" (2008). 2008 Decisions. Paper 420.
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  CLD- 273                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3657
                                       ___________

                                 ROBERT C. WELDON,
                                                            Appellant

                                             v.

                   U.S. ATTORNEY FOR THE MIDDLE DISTRICT
                      ____________________________________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                  (D.C. Civil No. 07-1502)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 14, 2008
              Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                             (Opinion filed: October 2, 2008)
                                        _________

                                         OPINION
                                        _________

PER CURIAM

       Robert C. Weldon, a pro se prisoner, appeals the dismissal of a mandamus petition

that he filed pursuant to 28 U.S.C. § 1361 in the United States District Court for the



                                             1
Middle District of Pennsylvania.1 Weldon petitioned the District Court to order the U.S.

Attorney’s Office for the Middle District of Pennsylvania to initiate an investigation into

alleged civil rights violations at SCI-Dallas and to pursue a civil and/or criminal action.

He also requested that the District Court order the U.S. Marshal Service to assist in the

investigation, appoint counsel for Weldon, order a seizure of all records, direct the prison

to place Weldon in a safer housing unit, and allow Weldon to recover evidence “within

the state.”

       Weldon alleges that prison officials violated his civil rights by disclosing to other

inmates that he was convicted of a sex offense. Weldon alleges that prison officials

called him a “homosexual pedophile” and falsely accused him on three separate occasions

of committing homosexual acts, which has further incited other inmates to abuse Weldon

with the prison officials’ knowledge and/or participation. Weldon alleges that he has

been placed in the restrictive housing unit as a result of false misconduct reports. Weldon

also alleges that he has been denied food trays.

       The District Court dismissed Weldon’s mandamus petition pursuant to § 28 U.S.C.

1915(e)(2), on the basis that mandamus is an extraordinary remedy to which Weldon was

not entitled. Weldon appealed, and appellees filed a motion for summary affirmance.




  1
   Weldon also cites 28 U.S.C. § 1651 as a basis for the District Court’s jurisdiction, but
the substance of his petition falls squarely within the scope of § 1361, which authorizes
the District Courts “to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.”

                                              2
       As the District Court observed, the remedy 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) (citations omitted); Media Gen. Operations, Inc.

v. Buchanan, 417 F.3d 424, 434 (4th Cir. 2005). As Weldon’s petition involves matters

that can be pursued through a civil action pursuant to 42 U.S.C. § 1983, Weldon has not

established that mandamus relief is warranted.

       Accordingly, we will grant appellee’s motion and summarily affirm the order of

the District Court.
