                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2009

In Re: John Futch
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1788




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Recommended Citation
"In Re: John Futch " (2009). 2009 Decisions. Paper 1390.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1390


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CLD-155                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 09-1788
                                    ________________

                                           IN RE:

                                  JOHN RANDALL FUTCH,

                                           Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                       (Related to D. N.J. Civ. No. 08-cv-04378)
                     _____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                     April 9, 2009

            Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges

                               (Opinion filed: May 7, 2009)
                                       _________

                                         OPINION
                                         _________

PER CURIAM

       In February 2009, John Futch, a prisoner at the Federal Correctional Institution at

Fort Dix, filed a petition for a writ of mandamus. For the reasons stated below, we will

deny the petition.

       In his petition, Futch contends that the United States District Court for the District
of New Jersey failed to “process” a Bivens1 action he claims to have filed in December

2008. Futch attaches a version of his complaint, which is marked “Copy.” Futch also

states that he wrote a letter to the Honorable Robert B. Kugler, in which he referred to the

filing of his December Bivens action, and explained that he also sought injunctive relief.

Futch requests in his mandamus petition that this Court issue an order that “his Bivens

action be process in accordance to law” [sic].

       We have original jurisdiction over a petition for a writ of mandamus that seeks 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.” Roche v. Evaporated Milk Ass’n,

319 U.S. 21, 26 (1943). The writ of mandamus is an extreme remedy that is granted only

when there is no other remedy available to the petitioner and the petitioner’s right to

mandamus relief is clear and indisputable. Kerr v. United States Dist. Court, 426 U.S.

394, 402 (1976); In re Pasquariello, 16 F.3d 525, 528 (3d Cir. 1994). Futch attached to

his petition a handwritten complaint which he claims he filed to initiate a Bivens action,

but provides no proof of filing, stamp, or civil action number.2 Furthermore, our search

of the docket for the District Court for District of New Jersey yields no record of a Bivens



   1
    Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
   2
     It is unclear what Futch means by “process.” To the extent he is alleging merely that
he mailed his complaint and is complaining that the District Court has yet to docket it, his
petition fails because he provides no evidence that he mailed the complaint and/or that the
court received it

                                              2
action filed by Futch in December 2008.3 Because Futch has provided no evidence that

he filed a Bivens complaint in December 2008, and because, even if he had, he filed this

mandamus petition a mere two months later, we cannot conclude that he has a “clear and

indisputable right” to the relief sought. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir.

1996) (discussing delay). Therefore we will deny Futch’s mandamus petition.




   3
    A search for all cases involving Futch as a party reveals that he has filed several
matters in the District Court of New Jersey. See Futch v. Cemero, No. 08-cv-03545,
Futch v. McKinnon, et al, No. 08-cv-03469, Futch v. Grondolsky, No. 09-cv-00845,
Futch v. Grondolsky, No. 09-cv-00778. None of these dockets indicate that he filed a
Bivens complaint in December 2008.

                                             3
