                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-3-1996

Madden v. Myers
Precedential or Non-Precedential:

Docket 96-8046




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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                  No. 96-8046
              ___________________

                 RONALD MADDEN,

                           Petitioner

                      v.

                  KEVIN MYERS,

                           Respondent

            Honorable Malcolm Muir,
             United States District Judge

                          Nominal Respondent.
       ________________________________

On Appeal From the United States District Court
    For the Middle District of Pennsylvania
          (D.C. Civ. No. 96-cv-00239)
       __________________________________

   Submitted Under Third Circuit LAR 34.1(a)
                 August 8, 1996

Before: BECKER, ALITO and MCKEE, Circuit Judges.
               (Motions Panel A)

            (Filed December 3, 1996)

               RONALD MADDEN,
                           # 107247
               South Central Correctional Facility
               P.O. Box 279
               Clifton, TN                           38425-0279

                           Petitioner Pro Se

               KEVIN MYERS
               South Central Correctional Facility
               P.O. Box 279
               Clifton, TN 38425-0279

                           Respondent Pro Se

               HONORABLE MALCOLM MUIR
               United States District Judge
               P.O. Box 608
                         Williamsport, PA   17703

                                     Nominal Respondent




                         OPINION OF THE COURT


BECKER, Circuit Judge.

         Ronald Madden petitions this Court under 28 U.S.C. § 1651(a) for
a writ of
mandamus requiring the district court to promptly act upon his request for
habeas corpus relief.
In his habeas petition filed in the District Court for the Middle District
of Tennessee, but
transferred to the District Court for the Middle District of Pennsylvania,
Madden challenged his
extradition from Pennsylvania to Tennessee. On February 21, 1996, nine
days after receiving the
submission, the magistrate judge filed a report recommending that the
habeas petition be denied.
On March 4, 1996, Madden filed objections to the magistrate judge's
report, and, on July 15, he
filed this mandamus petition. The petition was accompanied by an
application to proceed informa pauperis; hence we must determine whether
the filing fee payment requirements of the
Prison Litigation Reform Act of 1996 ("PLRA" or "Act")apply to mandamus
petitions. Because
we believe that the present petition is not the type of action that
Congress meant to deter when it
passed the PLRA, we hold that the fee requirements of the PLRA do not
apply. On the merits,
we deny the mandamus petition.

                                I.
                                A.
    Before turning to the merits of Madden's petition, we must determine
whether he
may proceed in forma pauperis, and, if so, whether he must pay a filing
fee of $100.00 pursuant
to the PLRA. The PLRA dramatically altered the consequences attached to
in forma pauperisstatus for prisoners. 28 U.S.C. § 1915; see Santana v.
United States, No. 96-5276, 1996 WL
596845, *1 (3d Cir. Oct. 18, 1996) (amended Nov. 14, 1996). An
incarcerated in forma pauperislitigant now must pay the full filing fee
when he brings a civil action or files an appeal, although
he may pay on an installment plan. 28 U.S.C. § 1915(b). Because Mr.
Madden's affidavit of
poverty shows that he has only $5.11 in his prison account, has no other
assets, and has received
an income of only $35.50 in the past two months, he is entitled to proceed
in forma pauperis.
However, if the PLRA is applicable to mandamus actions such as Madden's,
he must somehow
pay a fee of $100 in order to obtain judicial review of his petition.
                                B.
    The PLRA distinguishes between criminal and civil actions, and
requires federal
courts to collect filing fees only in the latter cases, where "a prisoner
brings a civil action or files
an appeal." Id. § 1915(b)(1). Yet a writ of mandamus is by its very
nature outside the ambit of
this taxonomy. It is not an "action", and, a fortiori, not a "civil
action." A writ of mandamus,
which is authorized by the All Writs Act, 28 U.S.C. § 1651, instead
constitutes a procedural
mechanism through which a court of appeals reviews a carefully
circumscribed and discrete
category of district court orders. See Martin v. United States, 96 F.3d
853, 854 (7th Cir. 1996)
(mandamus is "a procedural step in the ... litigation."); Green v.
Nottingham, 90 F.3d 415, 417
(10th Cir. 1996) (acknowledging that "[m]andamus proceedings have been
considered outside of
district court jurisdiction over 'civil actions,'" while concluding that
writs of mandamus fall
within the scope of § 1915 of the PLRA).
    Neither is a writ of mandamus an "appeal." In the context of the
PLRA, the word
"appeal" clearly means the appeal of a civil action. See Martin, 96 F.3d
at 854. While
mandamus is typically characterized as an appellate power, id. (mandamus
is "realistically a form
of interlocutory appeal"), it is different in kind from an appeal.
Indeed, a writ of mandamus may
not issue if a petitioner can obtain relief by appeal; a petition for
mandamus "must not be used as
a mere substitute for appeal." 16 Charles A. Wright & Arthur R. Miller,
Federal Practice and
Procedure § 3932, at 185 (1977).
    Because a writ of mandamus is neither a "civil action" nor an
"appeal," our
decision is not controlled by the plain meaning of the text. We must, of
course, ensure that we
have not frustrated congressional intent. See Stafford v. Briggs, 444
U.S. 527, 535 (1980)
(concluding that a court should move beyond literal construction of a
statute to effectuate "the
objects and policy of the law") (citations omitted). The clear import of
the PLRA is to curtail
frivolous prison litigation, namely that brought under 42 U.S.C. § 1983
and the Federal Torts
Claims Act. See Santana, 1996 WL 596845, at *3 (citing H.R. Conf. Rep.
No. 104-378, 104th
Cong., 2d Sess. (1996)).
    As a result, we agree with the courts of appeals that have held that
where the
underlying litigation is criminal, or otherwise of the type that Congress
did not intend to curtail,
the petition for mandamus need not comply with the PLRA. See Martin, 96
F.3d at 854-55
("[T]he scope of the new Act should turn on whether the litigation in
which it is being filed is
within that scope."); In re Paul Nagy, 89 F.3d 115, 117 (2d Cir. 1996).
This interpretation alone
preserves the writ for prisoners who may have no other relief in a
criminal action in which a
court has exceeded its judicial power or failed to use its power "where
there is a duty to do so."
Lusardi v. Lechner, 855 F.2d 1062, 1069 (3rd Cir. 1988). In the case
before us, Madden seeks a
writ of mandamus relating to a habeas corpus action. This Court, in
Santana, concluded that,
because of the hybrid nature of habeas corpus actions and evidence that
Congress did not intend
to reform habeas corpus law in the PLRA, such actions were not subject to
the Act's fee
requirements. 1996 WL 596845, at *2-4. Therefore, Madden is not required
to meet the fee
obligations of the PLRA.
    Another reason that Congress could not have intended that petitions
for writ of
mandamus fall within the scope of the PLRA is that seeking a writ of
mandamus is often the only
way a litigant can obtain review of certain orders or can compel a
district judge to act. Congress
has demonstrated a grave concern about delay in civil cases, see, e.g.,
Civil Justice Expense and
Delay Reduction Plans, 28 U.S.C. §§ 471-482 (requiring district courts to
implement plans
intended in part to "ensure just, speedy, and inexpensive resolutions of
civil disputes").
Mandamus petitions provide an avenue for dealing with the situation (which
fortunately occurs
infrequently) where cases have been unduly delayed in the district court.
See, e.g., McDonnell
Douglas Corp. v. Polin, 429 F.2d 30, 30-31 (3rd Cir. 1970) (ordering
district court not to defer
ruling on a motion for transfer until all discovery was completed).
    We have also held that mandamus is the appropriate remedy when the
district
court ignores this Court's mandate. Blasband v. Rales, 979 F.2d 324, 328-
29 (3rd Cir. 1992). In
Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3rd Cir. 1993),
this Court held that
mandamus is the proper way to seek review of a judge's order refusing to
recuse under 28 U.S.C.
§ 455 where the judge's impartiality might reasonably be questioned.
Mandamus in these
instances serves not only to correct a harm to a litigant, but to preserve
judicial integrity and
public confidence. Review after final judgment might cure the harm to the
litigant, but it would
not cure the additional separate harm to the public confidence.
    Because mandamus petitions fall outside the plain meaning of the PLRA,
seesupra at 3-5, and the writ is an effective tool in exercising this
court's supervisory powers, bona
fide mandamus petitions, regardless of the nature of the underlying
actions, cannot be subject to
the PLRA.
                                C.
    A litigant should not be able to evade the PLRA by masking as a
mandamus
petition a paper otherwise subject to the Act. We will, therefore,
require that any action
improperly styled as mandamus must meet the fee requirements of the PLRA.
It is the nature of
the document, rather than the label attached by the litigant, that
controls. This acknowledgment
creates, however, a serious administrative problem in the processing of
pro se litigation in the
federal courts, particularly in the area of docketing. Where the PLRA
applies, the petitioner must
file an affidavit of poverty, a six-month account statement, and a form
authorizing prison
officials to withdraw money from his account; where it does not, the
petitioner need only file an
affidavit of poverty. Moreover, and more importantly, the Deputy Clerk
receiving the papers,
who is not law trained, will have to make a decision as to whether the
PLRA applies in order to
insure that the litigant has filed the proper documents. While the Deputy
Clerk will, of course,
be able to consult the legal staff within the Court, it will not always be
easy to determine from
the papers whether the PLRA applies to something styled as a mandamus
because it really masks
a civil action or appeal that is subject to the PLRA.
    Because of the importance of these concerns to the administration of
justice
within the Circuit, we think that it will be useful for the Clerk's office
to posit that a paper styled
as a mandamus petition will not be subject to the PLRA unless it appears
clearly that the styling
is an effort to avoid the requirements of that Act. We also suggest that
it follow the procedures
set forth in the margin.
         Of course, if a prisoner files a paper that is styled as a
mandamus petition and that
does not clearly appear to be an effort to avoid the requirements of the
PLRA but that in fact
constitutes an appeal in a civil action, the PLRA would likely apply and a
filing fee would have
to be collected. This makes clear that the Clerk's office's treatment of
questionable mandamus
petitions must be subject to review by the Court.

                               II.
         Turning to the merits of Madden's mandamus petition, we find no
basis for
granting the petition for writ of mandamus. Mandamus is an appropriate
remedy in
extraordinary circumstances only. Kerr v. U.S Dist. Ct., 426 U.S. 394,
403 (1976). A petitioner
seeking the issuance of a writ of mandamus must have no other adequate
means to obtain the
desired relief, and must show that the right to issuance is clear and
indisputable. See Allied
Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); Bankers Life &
Casualty Co. v.
Holland, 346 U.S. 379, 384 (1953).
         Madden asks this Court to issue an order directing the district
court to decide his
case forthwith and to hold that his claims have been exhausted. As we
have noted above, an
appellate court may issue a writ of mandamus on the ground that undue
delay is tantamount to a
failure to exercise jurisdiction, see, e.g., McClellan v. Young, 421 F.2d
690 (6th Cir. 1970), and,
without actually issuing a writ, may order a district court not to defer
adjudicating a case. SeeMcDonnell Douglas Corp., 429 F.2d 30-31. Madden
cannot demonstrate that a writ of
mandamus is warranted. Because he can appeal the decision of the district
court when a final
order is issued, Madden cannot demonstrate that no other adequate means of
relief regarding the
issue of exhaustion exists.
         Madden's claims of delay have greater force. That resolution of
Madden's claims
has been delayed is clear. The Magistrate Judge's Report and
Recommendation was filed in
February, 1996. Madden filed objections in March and motions to amend the
petition and for
appointment of counsel in April. As of the time Madden filed his petition
for writ of mandamus,
no action had been taken on these motions and no final order had been
issued. Although this
delay is of concern, it does not yet rise to the level of a denial of due
process. We are confident
that the district court will issue its decision quickly.
         In sum, the motion to proceed in forma pauperis will be granted.
Because the
provisions of 28 U.S.C. § 1915(b) are inapplicable, no docketing fee will
be assessed. The
petition for writ of mandamus will be denied. This denial is without
prejudice to petitioner filing
a new petition for writ of mandamus if the district court does not act
within 60 days of the date of
this order.
