                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2006

In Re: Martinez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4682




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Recommended Citation
"In Re: Martinez " (2006). 2006 Decisions. Paper 1649.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1649


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HPS-4 (November 2005)                                           NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No. 05-4682


                           IN RE: ABRAHAM J. MARTINEZ,
                                                   Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                           United States District Court for the
                                   District of Delaware
                         (Related to D. Del. Civ. No. 04-cv-104)
                      _____________________________________

                        Submitted Under Rule 21, Fed. R. App. P.
                                   November 4, 2005

         BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                                 (Filed: February 1, 2006)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM.

       Pro se petitioner Abraham Martinez seeks a writ of mandamus to compel the

United States District Court for District of Delaware to effect service of process in his

civil rights suit, pursuant to 28 U.S.C. § 1915(d), and to rule on his motion for the

appointment of counsel.
       The writ of mandamus is an extraordinary remedy, which is justified only in the

presence of exceptional circumstances. Kerr v. United States District Court, 426 U.S.

394, 402 (1976). In order to demonstrate the existence of exceptional circumstances, a

petitioner must show that he has no other adequate means of obtaining relief and that he

has a clear and indisputable right to issuance of the writ. Id. at 403.

       In an order entered December 6, 2005, the District Court – acting pursuant to 28

U.S.C. § 1915A – dismissed as frivolous all except the Fourth Amendment claims in

Martinez’s complaint. Also on that date, the District Court entered an order denying

without prejudice Martinez’s motion for the appointment of counsel and an order

requiring Martinez either to pay the remaining amount of the filing fee or to submit a new

application to proceed in forma pauperis within 14 days, or his case would be dismissed

without prejudice. On January 4, 2006, the District Court dismissed the complaint

without prejudice, because Martinez had failed to either pay the remaining filing fee or

return the required in forma pauperis forms within the deadline. In light of the District

Court’s orders, Martinez’s petition for a writ of mandamus will be denied as moot.




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