Buhl v. Berkebile

Filing 15

ORDER from the United States Court of Appeals for the Tenth Circuit, DENYING 8 Petition for Writ of Mandamus, filed by Leroy Buhl AND Order DENYING Motion In Forma Pauperis by Leroy Behl, on 08/28/14. (nmarb, )

Appellate Case: 14-1250

Document: 01019301974

Date Filed: 08/28/2014

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

FOR THE TENTH CIRCUIT

August 28, 2014
Elisabeth A. Shumaker
Clerk of Court

In re:

No. 14-1250
(D.C. No. 1:14-CV-01476-BNB)
(D. Colo.)

LEROY BUHL,
Petitioner.
ORDER

Before BACHARACH, EBEL, and PHILLIPS, Circuit Judges.
Leroy Buhl, proceeding pro se, petitions for a writ of mandamus directing the
district court to order the warden at the United States Penitentiary, Administrative
Maximum, in Florence, Colorado, to transfer him to another prison. We deny
mandamus relief.
Mr. Buhl contends that after he was assaulted by an inmate, he was placed in
the special housing unit without receiving the due process requirement of a timely
disciplinary hearing. Although he eventually was cleared of any wrongdoing, he
asserts that he was not released from the special housing unit, so he filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2241, asking the district court to order
the warden to release him from the special housing unit. He complains that the
magistrate judge improperly issued a notice directing him to cure the deficiencies in
his request for leave to proceed in forma pauperis (IFP), thereby suggesting the court
acted as the warden’s advocate. In addition, Mr. Buhl contends that prison officials

Appellate Case: 14-1250

Document: 01019301974

Date Filed: 08/28/2014

Page: 2

mishandled and withheld the notice and ultimately delivered it to him as regular, not
legal, mail, thereby impeding his access to the courts.
Based on these assertions, Mr. Buhl asks us to issue a writ of mandamus
directing the district court to order the warden to transfer him to another federal
prison. “[A] writ of mandamus is a drastic remedy, and is to be invoked only in
extraordinary circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186
(10th Cir. 2009) (internal quotation marks omitted). It “is used only to confine [the
district] court to a lawful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so.” Id. (internal quotation marks
omitted).
This case does not present extraordinary circumstances warranting a writ of
mandamus. Mr. Buhl has failed to show that the court has a duty to order the warden
to transfer him to another prison. Rather, Mr. Buhl must continue with his § 2241
proceedings in the district court, and, if he does not prevail, follow the usual path of
appealing. “[M]andamus is not a substitute for an appeal.” Id.
Accordingly, we deny Mr. Buhl mandamus relief. Also, we deny his IFP
motion because this proceeding is meritless and an appeal would not be taken in good
faith. See 28 U.S.C. § 1915.
Entered for the Court

ELISABETH A. SHUMAKER, Clerk
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