                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2007

In Re: Darryl Baker
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3831




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Recommended Citation
"In Re: Darryl Baker " (2007). 2007 Decisions. Paper 113.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/113


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HLD-20 (November 2007)                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 07-3831
                                   ________________

                          IN RE:    DARRYL ORRIN BAKER,
                                                 Petitioner

                      ____________________________________

                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                     (Related to W.D. Pa. Civ. No. 1:05-cv-00146)
                     _____________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                November 16, 2007
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                             (Filed December 07, 2007)
                                     _____________

                                        OPINION
                                     _____________

PER CURIAM.

              Darryl Baker, an inmate incarcerated at the Federal Correctional Facility in

Sandstone, Minnesota, filed a pro se Federal Tort Claims action that was dismissed by the

District Court on July 11, 2006.

              On June 8, 2007, Baker filed motions seeking to re-open the time to file an

appeal and for service of the District Court’s Order of dismissal. The District Court has

not ruled on any of these motions. Almost two months later, on July 26, 2007, Baker

filed a petition for a writ of mandamus in the District Court complaining that the Court
had not ruled on his motions, and had not instructed the Defendants to respond.

              Baker now petitions this Court for a writ of mandamus ordering that the

District Court grant him permission to file a Rule 59(e) motion, a notice of appeal, and a

direct appeal. He further requests that we order the production of the District Court’s

Order in this matter, which he never received.

              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). To prevail,

the petitioner must establish that he has “no other adequate means” to obtain relief, and

that he has a “clear and indisputable” right to issuance of the writ. Id. at 378-79. A

federal appellate court may issue a writ of mandamus on the grounds that undue delay is

tantamount to a failure to exercise jurisdiction, Madden v. Myers, 102 F.3d 74, 79 (3d

Cir. 1996); however, the manner in which a district court controls its docket is

discretionary. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982).

              Baker has demonstrated neither that he has no other adequate means for

relief, nor that his right to the writ is clear and indisputable. Baker’s motions have been

pending in the District Court for a mere five months, and we have no reason to doubt that

the District Court will timely take action in this case. Accordingly, we will deny the

petition.




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