Birman v. Berkebile et al

Filing 64

USCA ORDER re: 59 Petition for Writ of Mandamus and motion for immediate injunction filed by Michael Y. Birman are denied. (morti, )

Appellate Case: 15-1133

Document: 01019456015

Date Filed: 07/08/2015

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

July 8, 2015
Elisabeth A. Shumaker
Clerk of Court

In re: MICHAEL Y. BIRMAN,
Petitioner.

No. 15-1133
(D.C. No. 1:14-CV-00376-KLM)
(D. Colo.)
_________________________________
ORDER
_________________________________

Before KELLY, EBEL, and O’BRIEN, Circuit Judges.
_________________________________
Michael Y. Birman, a federal prisoner appearing pro se, has filed a petition for
writ of mandamus, seeking an order from this court directing the district court to consider
and decide his civil action, D.C. No. 1:14-CV-00376-KLM, which is pending in the
district court.
Mandamus is a drastic remedy “to be invoked only in extraordinary situations.”
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) (per curiam). “For
mandamus to issue, there must be a clear right to the relief sought, a plainly defined and
peremptory duty on the part of respondent to do the action in question, and no other
adequate remedy available.” Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990).
The district court docket sheet shows that the defendants’ motion for summary
judgment has been at issue since September 29, 2014. Since then, however, Mr. Birman
has filed several motions, including, but not limited to, a motion to amend the complaint
filed on October 20, which he renewed on December 1. He also filed a cross-motion for

Appellate Case: 15-1133

Document: 01019456015

Date Filed: 07/08/2015

Page: 2

summary judgment on October 23. Proceedings have continued in the district court. On
June 19, 2015, the district court entered an order stating that it will decide Mr. Birman’s
pending motions in due course. There has been no undue delay in the district court. We
take the district court at its word and fully expect that a decision will be entered in
prompt fashion.
Mr. Birman also filed a motion in this court for immediate injunction, seeking an
order from this court directing prison officials to stop interfering with his incoming legal
mail and to forward to this court the filing fee for his mandamus proceeding. Our docket
sheet shows that the filing fee for this mandamus proceeding was paid on June 29, so that
aspect of his motion is moot. Otherwise, the motion is conclusory and does not warrant
relief.
The petition for writ of mandamus and motion for immediate injunction are
denied.
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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