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


8-8-2006

In Re: Vivian Clarke
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3014




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Recommended Citation
"In Re: Vivian Clarke " (2006). 2006 Decisions. Paper 604.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/604


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HPS- 95      (July 2006)                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3014
                                   ________________

                             IN RE: VIVIAN R. CLARKE,
                                            Petitioner
                       ____________________________________

                     On a Petition for Writ of Mandamus from the
                United States District Court for the District of Delaware
                         (Related to D. Del. No. 05-cv-00647)
                     _____________________________________

                    Submitted Under Rule 21, Fed. R. App. P.
                                  July 14, 2006
     Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES
                              Filed: August 8, 2006
                         _______________________

                                       OPINION
                               _______________________

PER CURIAM

              Pro se petitioner Vivian R. Clarke filed a petition for writ of mandamus.

Clarke seeks review of the order entered by the United States District Court for the

District of Delaware denying his motion to appoint counsel and dismissing his complaint

without prejudice. We will deny the mandamus petition.

              In 2005, Clarke filed a pro se civil rights action pursuant to 42 U.S.C. §

1981(a) and § 1985(3). The District Court dismissed Clarke’s complaint without

prejudice on December 15, 2005, and gave Clarke until January 17, 2006 to file an

amended complaint. Instead of filing an amended complaint, Clarke filed a document
entitled “Emergency Motion” on January 19, 2006, which the District Court docketed as a

Notice of Appeal. On June 12, 2006, this Court issued a briefing notice in that appeal.

See C.A. No. 06-1431. Prior to receiving our briefing notice, Clarke filed the instant

mandamus petition on June 7, 2006. See C.A. 06-3014.

              The remedy of mandamus is reserved for the most extraordinary of

circumstances. DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). In order to ensure

that mandamus is sparingly granted, a petitioner seeking a writ of mandamus must

demonstrate that no other adequate means are available to obtain the desired relief, and

that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v.

Daiflon, Inc., 449 U.S. 33, 35, 101 S. Ct.188, 190 (1980) (per curiam) (quotation

omitted). 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, Clarke has an alternative means of challenging the District Court’s

order: the appeal which is already pending before this Court. In any event, Clarke’s

petition provides no basis on which to grant mandamus relief. Accordingly, the petition

for a writ of mandamus is denied.




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