Stine v. Lappin et al

Filing 15

USCA ORDER as to Mikeal Stine. Mr. Stine's petition for writ of mandamus is denied. USCA case no. 10-1306. (bjrsl, )

Case: 10-1306

Document: 01018463508

Date Filed: U n i t e d States Court 1 Appeals 07/26/2010 Page: of T e n t h Circuit

FILED

J u l y 26, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

I n re: MIKEAL GLENN STINE, Petitioner.

N o . 10-1306 ( D . C . No. 1:10-CV-01652-BNB) ( D . Colo.)

ORDER B e f o r e LUCERO, GORSUCH, and HOLMES, Circuit Judges.

M i k e a l Glenn Stine, a pro se prisoner, filed an Emergency Petition for Writ o f Mandamus, asking this court to direct the district court to issue an injunction a g a i n s t his transfer by the Bureau of Prisons to a particular prison unit and to o r d e r the district court to "immediately address" his claims by holding an e v i d e n t i a r y hearing. Mr. Stine alleges that his transfer to the other prison unit is i mmi n e n t . He claims the transfer will put his life in jeopardy because members of a gang who have previously threatened his life are housed in that unit. M a n d a mu s is a drastic remedy "to be invoked only in extraordinary s i t u a t i o n s . " Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). "For ma n d a mu s to issue, there must be a clear right to the relief sought, a plainly d e f i n e d and peremptory duty on the part of respondent to do the action in q u e s t i o n , and no other adequate remedy available. Petitioner must also show that

Case: 10-1306

Document: 01018463508

Date Filed: 07/26/2010

Page: 2

h i s right to the writ is clear and indisputable." Johnson v. Rogers, 917 F.2d 1283, 1 2 8 5 (10th Cir. 1990) (citation and quotation omitted). M r . Stine has not established that his right to mandamus relief is clear and i n d i s p u t a b l e . He fails to show that the district court has a plainly defined and p e r e mp t o r y duty to do the actions in question. While the district court has not yet r u l e d on his motion seeking an injunction against his transfer to a different prison u n i t , it has not "persistently and without reason refuse[d] to adjudicate a case p r o p e r l y before it." State Farm Mut. Auto Ins. Co. v. Scholes, 601 F.2d 1151, 1 1 5 4 (10th Cir. 1979) (quotations omitted). M r . Stine's request to proceed before this court without prepayment of c o s t s and fees is GRANTED. His petition for 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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