Escobar v. Foster et al

Filing 65

USCA ORDER denying 61 Letter and denying in forma pauperis by Elisabeth Shumaker on 8/28/12. (dkals, )

Appellate Case: 12-1297

Document: 01018904592

Date Filed: 08/28/2012

Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
EALS

FOR THE TENTH CIRCUIT

August 28, 2012
Elisabeth A. Shumaker
Clerk of Court

In re:
JOSE MEDINA ESCOBAR,

No. 12-1297
No 12 1297
No 12 1297
(D.C. No. 1:12-CV-00489-CMA-KLM)
(D. Colo.)

Petitioner.

ORDER

Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.
Jose Medina Escobar, a Colorado state prisoner, has filed a Petition for Writ of
Mandamus seeking an order compelling the magistrate judge assigned to his civil
rights action in Case No. 1:12-cv-00489-CMA-KLM to perform her judicial duties
correctly, issue a final judgment, allow him to appeal, and/or allow his complaint to
proceed.
Petitioner filed his complaint on February 24, 2012. Since then, he has filed,
among others, motions to supplement his complaint; to amend his complaint; for a
Court Order of Final Judgment; for the Court to Enter an Order for Any Relief it
Deems Appropriate; and for Copies. He also filed an appeal from the denials of his
motions to supplement and to amend. See Escobar v. Foster, No. 12-1160 (10th Cir.
May 16, 2012) (unpublished order) (dismissing appeal for failure to prosecute).
The district court docket sheet demonstrates that a Scheduling Conference was
held on August 16, 2012, that the magistrate judge and district court have been timely

Appellate Case: 12-1297

Document: 01018904592

Date Filed: 08/28/2012

Page: 2

ruling on all of Petitioner’s motions, and that this civil action is proceeding apace.
There is no meritorious basis for Petitioner’s request to invoke the “drastic” and
“extraordinary” remedy of mandamus. See Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33, 35 (1980) (“Only exceptional circumstances, amounting to a judicial
usurpation of power, will justify the invocation of this extraordinary remedy.”)
We DENY the petition. We also DENY Petitioner’s motion to proceed in
forma pauperis because his mandamus petition does not present “a reasoned,
nonfrivolous argument on the law and facts.” DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991).

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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