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


10-8-2008

In Re: Arthur Hairston
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3330




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Recommended Citation
"In Re: Arthur Hairston " (2008). 2008 Decisions. Paper 388.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/388


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Amended HLD-150                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-3330
                                       ___________


                            IN RE: ARTHUR L. HAIRSTON,
                                                   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. 08-01348)
                      ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    August 29, 2008

        Before: SCIRICA, Chief Judge, ALDISERT and GARTH, Circuit Judges

                                  (Filed: October 8, 2008)
                                         _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM.

       Pro se petitioner Arthur L. Hairston, Sr. seeks a writ of mandamus to compel the

United States District Court for the District of New Jersey to grant injunctive relief in

connection with his civil rights complaint. In his complaint, Hairston challenged the

filing fee installment payment requirements of the Prison Litigation Reform Act,

28 U.S.C. § 1915, as being unconstitutional as applied to him. He alleged that prison
officials are deducting funds from his prison account for payment of filing fees, and

because he only earns $0.11 per hour from his prison job, he needs that money to call his

loved ones. Hairston contended that his Eighth Amendment rights were being violated by

the prison account deductions given that he has no gainful employment. Hairston also

filed an application to proceed in forma pauperis. The District Court granted the in forma

pauperis motion but dismissed the complaint for failure to state a claim on which relief

may be granted. Hairston filed a notice of appeal, which was docketed in this Court at

C.A. No. 08-2641. On August 8, 2008, Hairston’s appeal was dismissed for failure to

timely prosecute for failure to pay the requisite fee as directed.

       In his mandamus petition, Hairston asks this Court to compel the District Court to

grant his motion for injunctive relief pending his appeal, which was contained within his

notice of appeal. He contends that he should not have to choose between maintaining

telephone contact with his family and pursuing civil rights suits and appeals, and that

injunctive relief to halt the continuing account deductions is necessary. Hairston has also

filed letter motions dated August 21, 2008 and August 27, 2008, again asking for the

injunctive relief to be granted.

       The remedy of mandamus is appropriate to aid this Court’s jurisdiction in

extraordinary circumstances only. See In re Chambers Dev. Co., 148 F.3d 214, 223 (3d

Cir. 1998). To prevail, a petitioner must show, among other things, that there are no other

available means to obtain the relief he seeks. Id.



                                              2
       We note that Hairston’s request for injunctive relief pending appeal, as filed in

District Court, now appears to be moot because his appeal is no longer pending. Thus,

because his mandamus petition seeks an order compelling the District Court to grant an

injunction pending appeal, we will deny the mandamus petition. To the extent that

Hairston asks this Court to overturn the District Court’s dismissal of his complaint and

enjoin the deductions from his prison account, Hairston clearly had other available means

of obtaining review of the District Court’s decision other than by way of mandamus,

namely, his appeal at C.A. No. 08-2641. Mandamus is not an alternative to an appeal;

because of its drastic nature, “a writ of mandamus should not be issued where relief may

be obtained through an ordinary appeal.” In re Chambers Dev. Co., 148 F.3d at 223. To

the extent that Hairston’s motions seek the same relief sought in his mandamus petition,

we deny the motions on the same principles. Finally, to the extent that the motions seek

expedited consideration of his mandamus petition, we deny the motion.

       For the foregoing reasons, we will deny the petition for a writ of mandamus and

deny the letter motion.




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