In re: Gerald Bush

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, SHWARTZ and SLOVITER, Circuit Judges. Total Pages: 2. DLD-050. To the extent Appellant' seeks appointment of counsel in this mandamus action, that request is denied.

Case: 14-4040

Document: 003111818158

Page: 1

DLD-050

Date Filed: 12/11/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-4040
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IN RE: GERALD BUSH, Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to E.D. Pa. Civ. No. 2:11-cv-02612)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
December 4, 2014
Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges
(Opinion filed: December 11, 2014)
_________
OPINION*
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PER CURIAM
On September 30, 2014, pro se petitioner Gerald Bush filed a letter in this Court,
complaining that the United States District Court for the Eastern District of Pennsylvania
had not resolved his civil rights action docketed at No. 2:11-cv-02612. The Clerk of this
Court construed the letter as a petition for a writ of mandamus, and she issued an order
deferring action on the petition because Bush had yet to serve the petition on counsel for

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 14-4040

Document: 003111818158

Page: 2

Date Filed: 12/11/2014

the other parties or provide a copy to the District Judge pursuant to Federal Rule of
Appellate Procedure 21(a)(1). Bush subsequently complied with Rule 21(a)(1) and
indicated that he indeed is seeking mandamus relief. On October 24, 2014, the District
Court dismissed the amended complaint in Bush’s civil rights action with prejudice and
closed that case. Bush appealed from that dismissal, and that appeal remains pending.
See C.A. No. 14-4377.
To the extent that Bush’s mandamus petition asks us to direct the District Court to
adjudicate his civil rights action, that request is now moot. To the extent that Bush
claims that (1) the District Court’s delay in adjudicating his case prejudiced him, and
(2) the District Court erred in denying his motions for appointment of counsel, mandamus
relief is not warranted because Bush may raise those claims in his appeal in C.A. No. 144377. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (explaining that mandamus
is not a substitute for an appeal, and that “a writ of mandamus may not issue if a
petitioner can obtain relief by appeal”). Accordingly, we will deny Bush’s mandamus
petition. To the extent that he seeks appointment of counsel in this mandamus action,
that request is denied.

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