Taylor v. Ortiz et al

Filing 155

USCA ORDER re: 154 Letter for petition of mandamus. The petition for mandamus is denied. (bjrsl, )

Case: 09-1147

Document: 01017964255

Date Filed: U n i t e d States Court 1 Appeals 04/22/2009 Page: of T e n t h Circuit

FILED

A p r i l 22, 2009
U N I T E D STATES COURT OF APPEALSE l i s a b e t h A. Shumaker F O R THE TENTH CIRCUIT
C l e r k of Court

I n re: J A M E S A. TAYLOR, Petitioner. N o . 09-1147 ( D . C . No. 05-CV-574-PAB-MJW) ( D . Colo.)

ORDER B e f o r e TACHA, BRISCOE, and MURPHY, Circuit Judges.

J a me s A. Taylor seeks a writ of mandamus ordering the district court to a d o p t his reading of the amended scheduling order in his pending civil rights a c t i o n . He contends that the district court clearly abused its discretion in ruling t h a t he may serve a total of twenty-five interrogatories and twenty-five p r o d u c t i o n requests (rather than twenty-five interrogatories and twenty-five p r o d u c t i o n requests on each defendant). Mandamus is available to challenge discovery decisions. See Schlagenhauf v . Holder, 379 U.S. 104, 111-12 (1964); Daimler-Benz Aktiengesellschaft v. U.S. D i s t . Court, 805 F.2d 340, 342 (10th Cir. 1986) (per curiam). But "[a] writ of ma n d a mu s to a trial court in matters relating to discovery should only issue under e x c e p t i o n a l circumstances which amount to a clear abuse of discretion, an a b d i c a t i o n of the judicial function, or the usurpation of judicial power."

Case: 09-1147

Document: 01017964255

Date Filed: 04/22/2009

Page: 2

P a r a m o u n t Film Distrib. Corp. v. Civic Ctr. Theatre, 333 F.2d 358, 361 (10th Cir. 1 9 6 4 ) ; see also United States v. Carrigan, 804 F.2d 599, 602 (10th Cir. 1986) ( " T h e r e f o r e , to grant the . . . petition in the case before us here, we must find e i t h e r (1) that the district court acted wholly without jurisdiction, or (2) that the d i s t r i c t court so clearly abused its discretion as to constitute usurpation of p o w e r . " ) . While "a simple showing of error may suffice to obtain a reversal on d i r e c t appeal," such a showing will not support a writ of mandamus. Allied C h e m . Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). E x e r c i s i n g its discretion, the district court chose one of two competing i n t e r p r e t a t i o n s of the amended scheduling order. Mr. Taylor has not shown that t h e district court's ruling constitutes an abuse of discretion, much less such a c l e a r abuse of discretion as to support mandamus relief. See Crawford-El v. B r i t t o n , 523 U.S. 574, 598 (1998) ("Rule 26 vests the trial judge with broad d i s c r e t i o n to tailor discovery narrowly and to dictate the sequence of discovery."). Mr. Taylor's motion to proceed in forma pauperis is GRANTED. The p e t i t i o n for a writ of mandamus is DENIED.

Entered for the Court,

E L I S A B E T H A. SHUMAKER, Clerk

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