Ronald Madden v. Kevin Myers, Honorable Malcolm Muir, United States District Judge, Nominal, 102 F.3d 74, 3rd Cir. (1996)

102 F.
3d 74
Ronald MADDEN, Petitioner,

v.
Kevin MYERS, Respondent.
Honorable Malcolm Muir, United States District Judge,
Nominal Respondent.
No. 96-8046.
United States Court of Appeals,

Third Circuit.
Submitted Under Third Circuit LAR 34.1(a)
Aug. 8, 1996.
Decided Dec. 3, 1996.
As Amended Dec. 9, 1996.
Ronald Madden, Clifton, TN, Pro Se.

Kevin Myers, Clifton, TN, Pro Se.
Malcolm Muir, United States District Judge, Williamsport, PA, Nominal
Respondent.
Before: BECKER, ALITO and McKEE, Circuit Judges.
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 in forma 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.1 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.
2
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 pauperis status for prisoners. 28 U.S.C.
1915; see Santana v. United States, 98 F.3d 752, 753-54 (3d Cir.1996) . An
incarcerated in forma pauperis litigant 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.
3
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. 1651,2 instead constitutes a
procedural mechanism through which a court of appeals reviews a carefully
circumscribed and discrete category of district court orders.3 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.4 We must, of course,
ensure that we have not frustrated congressional intent. See Stafford v. Briggs,
444 U.S. 527, 535, 100 S.Ct. 774, 780, 63 L.Ed.2d 1 (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, 98 F.3d at 755
(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. 98 F.3d at 754-56. 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).
8
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, see supra at 76-77, 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.5
C.
9
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.
10
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.6
11
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.
12
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. United States Dist. Ct.,
426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (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, 101
S.Ct. 188, 190, 66 L.Ed.2d 193 (1980); Bankers Life & Casualty Co. v.
Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148-49, 98 L.Ed. 106 (1953).
13
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. See
McDonnell 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.
14
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.
15
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.
On April 26, 1996, the President signed the Omnibus Consolidated Rescissions
and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996), Title
VIII of which is the Prison Litigation Reform Act of 1996
28 U.S.C. 1651(a), sourced in the Judiciary Act of 1793, provides:

The Supreme Court and all courts established by Act of Congress may issue all
writs necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.
Writs of mandamus are also authorized by 28 U.S.C. 1361, which grants
district courts jurisdiction in "any action in the nature of mandamus to compel
an officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff." Actions pursuant to 1361 are often the method for
seeking review of an agency action. See 5 U.S.C. 703. Although the same
considerations may apply, whether the PLRA applies to 1361 petitions is not
before us, and, therefore, we need not decide it at this time.
A writ of mandamus has traditionally been available to a court of appeals only

"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." Will v. United
States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) (quoting
Roche v. Evaporated Milk Ass'n., 319 U.S. 21, 26, 63 S.Ct. 938, 941-42, 87
L.Ed. 1185 (1943))
In this case, we face a very different question from that presented by an in

forma pauperis petition for habeas relief. In Santana, 98 F.3d at 754-55, this
Court acknowledged that habeas corpus petitions fit within the literal scope of
the PLRA. Id. (citing Ex Parte Tom Tong, 108 U.S. 556, 559, 2 S.Ct. 871, 872,
27 L.Ed. 826 (1883)). However, because of the unique nature of habeas relief
and evidence that Congress intended to reform habeas corpus law through the
Antiterrorism and Effective Death Penalty Act, we concluded that a prisoner
seeking habeas corpus relief was not subject to the fee requirements of the
PLRA. Id. at 754-56
One purpose of the PLRA is to alleviate the burden on government resources of
responding to frivolous lawsuits. See 141 Cong. Rec. S626-29 (daily ed. Sept.
29, 1995). But exempting mandamus petitions that assert putative delay in
adjudication of pending cases will not undermine this purpose. The government
is not required to file a response to a mandamus petition unless the court so
directs. Furthermore, "[i]f the court is of the opinion that the writ should not be
granted, it shall deny the petition," and it may do so without a response from
the government. Fed. R.App. P. 21(b). It is therefore logical to assume that the
government will never be asked to file a response in a frivolous lawsuit
A litigant filing a petition for writ of mandamus must file an affidavit of
poverty with his petition. If the Court determines that the PLRA applies, it will
issue an order directing that the litigant file a six month prison account
statement and a form authorizing the prison to assess and deduct money from
the litigant's prison account. If the prisoner complies with the court order, fees
will be assessed in accordance with the PLRA, and the court will proceed to
decide the matter. Failure to comply with the court order will result in the
dismissal of the petition for failure to pay certain fees. Third Circuit L.A.R.
Misc. 107.1

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102 F.

Ronald MADDEN, Petitioner,

United States Court of Appeals,

Ronald Madden, Clifton, TN, Pro Se.

Before turning to the merits of Madden's petition, we must determine whether

Neither is a writ of mandamus an "appeal." In the context of the PLRA, the

Because a writ of mandamus is neither a "civil action" nor an "appeal," our

A litigant should not be able to evade the PLRA by masking as a mandamus

Because of the importance of these concerns to the administration of justice

Of course, if a prisoner files a paper that is styled as a mandamus petition and

Turning to the merits of Madden's mandamus petition, we find no basis for

Madden's claims of delay have greater force. That resolution of Madden's

28 U.S.C. 1651(a), sourced in the Judiciary Act of 1793, provides:

A writ of mandamus has traditionally been available to a court of appeals only

In this case, we face a very different question from that presented by an in

One purpose of the PLRA is to alleviate the burden on government resources of

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