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

10-2-2008

Weldon v. US Atty MD PA Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3657

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 07-3657 ___________

ROBERT C. WELDON, Appellant

v.

U.S. ATTORNEY FOR THE MIDDLE DISTRICT ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 07-1502) District Judge: Honorable William W. Caldwell ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 14, 2008 Before: AMBRO, FUENTES and JORDAN, Circuit Judges

(Opinion filed: October 2, 2008) _________

OPINION _________

PER CURIAM

Robert C. Weldon, a pro se prisoner, appeals the dismissal of a mandamus petition

that he filed pursuant to

in the United States District Court for the

1 Middle District of Pennsylvania.1 Weldon petitioned the District Court to order the U.S.

Attorney’s Office for the Middle District of Pennsylvania to initiate an investigation into

alleged civil rights violations at SCI-Dallas and to pursue a civil and/or criminal action.

He also requested that the District Court order the U.S. Marshal Service to assist in the

investigation, appoint counsel for Weldon, order a seizure of all records, direct the prison

to place Weldon in a safer housing unit, and allow Weldon to recover evidence “within

the state.”

Weldon alleges that prison officials violated his civil rights by disclosing to other

inmates that he was convicted of a sex offense. Weldon alleges that prison officials

called him a “homosexual pedophile” and falsely accused him on three separate occasions

of committing homosexual acts, which has further incited other inmates to abuse Weldon

with the prison officials’ knowledge and/or participation. Weldon alleges that he has

been placed in the restrictive housing unit as a result of false misconduct reports. Weldon

also alleges that he has been denied food trays.

The District Court dismissed Weldon’s mandamus petition pursuant to § 28 U.S.C.

1915(e)(2), on the basis that mandamus is an extraordinary remedy to which Weldon was

not entitled. Weldon appealed, and appellees filed a motion for summary affirmance.

1 Weldon also cites

as a basis for the District Court’s jurisdiction, but the substance of his petition falls squarely within the scope of § 1361, which authorizes the District Courts “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”

2 As the District Court observed, the remedy of mandamus is reserved for the most

“extraordinary situations.” DeMasi v. Weiss,

(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.,

(1980) (citations omitted); Media Gen. Operations, Inc.

v. Buchanan,

, 434 (4th Cir. 2005). As Weldon’s petition involves matters

that can be pursued through a civil action pursuant to

, Weldon has not

established that mandamus relief is warranted.

Accordingly, we will grant appellee’s motion and summarily affirm the order of

the District Court.