Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

In Re: Timothy Hale
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2560




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Recommended Citation
"In Re: Timothy Hale " (2005). 2005 Decisions. Paper 746.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/746


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CPS-248                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-2560
                                  ________________

                             IN RE: TIMOTHY A. HALE,

                                                Petitioner

                      ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Middle District of Pennsylvania
                      (Related to M.D. Pa. Civ. No. 04-cv-02704)
                      District Judge: Honorable James A. Munley
                     _____________________________________

                       Submitted Under Rule 21, Fed. R. App. P.
                                   May 26, 2005

              Before: ALITO, MCKEE and AMBRO, CIRCUIT JUDGES

                               (Filed:   August 2, 2005)


                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Timothy Hale has filed a petition for a writ of mandamus requesting that we issue

an order directing the District Court to review and consider Hale’s amended complaint.

In December 2004, Hale filed a civil rights complaint. By order entered January 19,

2005, the District Court ordered Hale to file an amended complaint complying with Rules
8 and 20 of the Federal Rules of Civil Procedure within twenty days or the action would

be dismissed. Hale then filed an amended complaint. By order entered February 8, 2005,

the District Court reviewed the amended complaint and dismissed it pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. In an April 28th letter to the District

Court, Hale alleged that he had not received a copy of the District Court’s February 8,

2005, order.

          The writ of mandamus will issue only in extraordinary circumstances. See Sporck

v. Peil, 

, 314 (3d Cir. 1985). As a precondition to the issuance of the writ,

the petitioner must establish that there is no alternative remedy or other adequate means to

obtain the desired relief, and the petitioner must demonstrate a clear and indisputable

right to the relief sought. Kerr v. United States District Court, 

, 403 (1976).

A writ is not a substitute for an appeal; only if a direct appeal is unavailable will the court

determine whether a writ of mandamus will issue. See In Re Ford Motor Co., 

, 957 (3d Cir. 1997).

          Hale requests that we direct the District Court to review his amended complaint.

Because the District Court has already done so, we will deny the petition as moot.

However, we will request the District Court to send Hale a copy of its February 8, 2005

order.1




   1
     It is not clear whether an appeal from the District Court’s February 8th order would
be timely. See Fed. R. App. P. 4(a)(6); Fed. R. Civ. P. 58. We express no opinion on our
jurisdiction over such an appeal.