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


7-21-2006

In Re: Carroway
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3001




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Recommended Citation
"In Re: Carroway " (2006). 2006 Decisions. Paper 717.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/717


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APS-261                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       NO. 06-3001
                                    ________________

                            IN RE: DAVID CARROWAY,
                                           Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
             United States District Court for the District Court of New Jersey
                        (Related to D. N.J. Civ. No. 06-cv-00614)
                      ____________________________________

                       Submitted Under Rule 21, Fed. R. App. Pro.
                                    June 29, 2006

            Before: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES.

                                  (Filed: July 21, 2006)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       David Carroway filed suit pursuant to 42 U.S.C. § 1983 alleging violations of his

civil rights in connection with the open-court publicizing of his status as an informant on

two separate occasions in the Superior Court of New Jersey. At the time of the incidents,

Carroway was appearing before the court in criminal proceedings pending against him.

His complaint was dismissed for failure to state a claim by the United States District

Court for the District of New Jersey. The District Court found that all named defendants
were immune from suit under the Eleventh Amendment or judicial or prosecutorial

immunity.

       Carroway has filed a petition for a writ of mandamus pursuant to 28 U.S.C. § 1651

asking us to direct the New Jersey Attorney General’s Office to “proceed with an

investigation of the actions, inactions, [and] behaviors” of the defendants in his civil suit.

The “scope of the investigation” should “encompass the necessary remedies,” including,

“the dismissal of criminal charges for all violations charged to the Petitioner.” Carroway

also asks that we “order the Superior Court of New Jersey, the Superior Court of Morris

County, the Superior Court of Union County, and [t]he Honorable Joseph A. Falcone,

and [Prosecutor] Victor R. Jusino, Esq., to recuse themselves from . . . Petitioner’s

criminal matters.” Petition at 4, 9.

       Mandamus is a “drastic remedy” which is generally used 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.’” Kerr v. U.S. Dist. Court, 426 U.S. 394, 402

(1976) (citations omitted). Only “‘exceptional circumstances amounting to a judicial

“usurpation of power”’” warrant the use of this extraordinary remedy. Id. (citation

omitted). The relief sought by Carroway is well outside the scope of the writ.

       To the extent that Carroway’s requests for relief may be read as asking us to

reverse the District Court’s dismissal of his complaint, this petition is not the proper

vehicle. To be entitled to the writ, a petitioner must show that there are no other adequate


                                              2
means to obtain the relief sought. See Oracare DPO, Inc. v. Merin, 972 F.2d 519, 522-23

(3d Cir. 1992). A mandamus petition is not a substitute for an appeal; if a petitioner can

obtain relief by an ordinary appeal, a court will not issue the writ. See In Re Ford Motor

Co., 110 F.3d 954, 957 (3d Cir. 1997). Here, Carroway has an alternate means to raise

his challenge to the District Court’s ruling in the form of an appeal. Indeed, Carroway

appealed the District Court’s decision and his appeal is currently pending. See C.A.

No. 06-3087.

       Accordingly, we will deny the petition.




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