AMENDED GLD-076                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 11-4259
                                       ___________

                            IN RE: WAYNE PETTAWAY,
                                     Petitioner
                       ____________________________________

                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                      (Related to W.D. Pa. Civ. No. 11-cv-00158)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                 December 22, 2011

      Before: FUENTES, GREENAWAY, JR., and STAPLETON, Circuit Judges

                             (Opinion file: January 12, 2012 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Wayne Pettaway filed this pro se petition for a writ of mandamus asking us to

compel certain actions in a civil matter currently pending in the District Court for the

Western District of Pennsylvania. For the following reasons, we will deny the petition.

                                             I.

       In the civil action underlying this mandamus petition, Pettaway sued the State

Correctional Institution at Albion, where he is incarcerated, and the “Department of


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Correction Camp Hill,” claiming that they improperly deducted certain funds from his

prison account. Before filing his complaint, he moved for a temporary restraining order

to prevent a “retaliatory” transfer to another prison. The case was assigned to Magistrate

Judge Baxter, who denied the motion without prejudice to Pettaway’s “right to file for

injunctive relief in the future if harm is imminent.”1

         Once his complaint was docketed, Pettaway moved for appointment of counsel,

primarily based on his claim that he suffers from a mental impairment. Magistrate Judge

Baxter denied the motion, finding counsel unwarranted under Tabron v. Grace, 

(3d Cir. 1993). Additionally, Magistrate Judge Baxter denied Pettaway’s two

motions for summary judgment as premature because the defendants had not yet been

served with the complaint. Pettaway thereafter filed a mandamus petition with this

Court, asking that we compel Magistrate Judge Baxter to appoint him counsel, prevent

any retaliatory transfer, grant him summary judgment, and correct an error on the docket.

The defendants have since been served and moved to dismiss Pettaway’s complaint on

the basis that they are entitled to sovereign immunity and because Pettaway failed to state

a claim.

                                             II.

         Mandamus is a “drastic and extraordinary remedy,” justifiable only in

“exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse

of discretion.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 

, 380


1
    The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).

                                              2
(2004) (quotations and citations omitted). To obtain relief, a petitioner must establish

that no other means of relief is adequate, a “clear and indisputable” right to the relief, and

that issuance of the writ is appropriate under the circumstances. In re Pressman-Gutman

Co., 

, 399 (3d Cir. 2006).

       Pettaway is not entitled to a writ of mandamus compelling entry of summary

judgment in his favor because Magistrate Judge Baxter did not clearly err in denying his

motions as premature. Now that the defendants have been served, we anticipate that, if

the complaint is not dismissed, Pettaway will refile for summary judgment after

discovery concludes, or at some other appropriate time, and that the relevant issues will

be litigated then. To the extent Pettaway seeks to compel the issuance of a temporary

restraining order to prohibit his transfer to another prison, he has not shown that he has

no other means for relief (as Magistrate Judge Baxter denied his motion without

prejudice) or that he has a clear and indisputable right to the writ.

       Nor is Pettaway entitled to a writ of mandamus compelling appointment of

counsel. If Pettaway disagrees with the Magistrate Judge’s resolution of his motion, he

may raise it on appeal to this Court after a final order is issued. In re Chambers Dev. Co.,

, 226 (3d Cir. 1998) (“[M]andamus is not a substitute for appeal and . . . will

not be granted if relief can be obtained by way of our appellate jurisdiction.”); Smith-Bey

v. Petsock, 

, 25-26 (3d Cir. 1984) (order denying motion for counsel is

nonappealable interlocutory order). Furthermore, the error on the docket identified in

Pettaway’s petition has since been corrected, so the petition is moot as to that issue.



                                              3
      For the foregoing reasons, we will deny Pettaway’s petition for a writ of

mandamus. Pettaway’s motion for appointment of counsel is denied. See 

.




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