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


10-16-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3502




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Recommended Citation
"In Re: Marvin John " (2008). 2008 Decisions. Paper 355.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/355


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HLD-157                                                  NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 08-3502
                                       ___________

                                IN RE: MARVIN J. COBB,
                                                   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. 07-cv-00085)

                                    ________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                 September 30, 2008
            Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                             (Opinion filed: October 16, 2008)
                                      ____________

                                         OPINION
                                       ____________

PER CURIAM.

               Marvin Cobb, a former federal prisoner proceeding pro se, seeks a writ of

mandamus in connection with a civil rights action that he filed in the United States

District Court for the Western District of Pennsylvania. We will deny the mandamus

petition.




                                              1
                In April 2007, Cobb filed a motion to proceed in forma pauperis in District

Court and submitted a complaint alleging discrimination at his prison job based on his

disabilities. Cobb claimed violations of the Americans with Disabilities Act and other

federal statutes. In December 2007, a Magistrate Judge granted the motion to proceed in

forma pauperis and ordered that Cobb’s complaint be filed. The Magistrate Judge also

terminated two motions for summary judgment that Cobb had filed, noting that neither

was a proper summary judgment motion.1 In June 2008, the Magistrate Judge ordered the

United States Marshall to serve Cobb’s complaint on the defendants.

                In his mandamus petition, Cobb complains that the District Court has not

compelled the defendants to answer his complaint. He asks us to grant a default judgment

in his favor.

                The writ of mandamus has traditionally been used 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. In re Patenaude, 210 F.3d 135, 140 (3d Cir. 2000)

(citations omitted). The writ is a drastic remedy that is seldom issued and its use is

discouraged. Id. A petitioner must show that he has no other means to attain the desired

relief and that the right to a writ is clear and indisputable. Id. at 141.



   1
     In the first motion, filed in June 2007, Cobb sought a default judgment because the
defendants had not answered his complaint. In the second motion, filed in August 2007,
Cobb sought a temporary release from prison for medical treatment. The latter motion
appears to be related to another action Cobb had filed alleging deliberate indifference to
his medical needs.

                                               2
              Applying these standards, Cobb is not entitled to relief. Cobb has not

sought any relief in the District Court since the Magistrate Judge ordered the United

States Marshal to serve his complaint. Cobb may move the District Court for a default

judgment based on the defendants’ failure to answer his complaint.2 To the extent the

complaint was not served, Cobb may move the District Court to enforce its order

directing service of the complaint. Because Cobb has other means to attain the desired

relief, mandamus relief is not warranted.

              Accordingly, we will deny the petition for a writ of mandamus.




   2
     Cobb’s previous motion for a default judgment was premature because his complaint
had yet to be filed.

                                             3
