Opinion
21-1172
08-10-2021
In re: DAVID E. HILL, Petitioner.
(D.C. No. 1:20-CV-03135-RBJ-NRM) (D. Colo.).
Before HARTZ, EID, and CARSON, Circuit Judges.
ORDER
Appellant David Hill has filed a petition for a writ of mandamus. He seeks an order from this court directing the district court to set aside its denial of summary judgment and to grant summary judgment in his favor. We deny the petition for writ of mandamus for the following reasons.
To issue a writ of mandamus, three conditions must be met: (1) the petitioner "must have no other adequate means to attain the relief he desires"; (2) "the petitioner must demonstrate that his right to the writ is clear and indisputable"; and (3) "the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1187 (10th Cir. 2009) (internal quotation marks omitted). The writ "is to be invoked only in extraordinary circumstances." Id. at 1186 (internal quotation marks omitted). "[M]andamus is ordinarily inappropriate to review the merits of a denial of summary judgment." In re Sch. Asbestos Litig., 977 F.2d 764, 793 (3d Cir. 1992).
Mr. Hill has not established that he has no other adequate means available to him in his quest to seek the relief he desires. In fact, he has appealed the very order he asks this court to invoke mandamus to reverse, and that appeal is currently pending with this court. And even if that appeal were found to be jurisdictionally flawed, Mr. Hill could appeal from a final judgment if one were entered against him. He fails to show that such an appeal would be an inadequate remedy to obtain the relief he desires. Because an adequate alternative to mandamus relief exists to challenge the district court's failure to rule in his favor mandamus is not an available remedy. The petition for writ of mandamus is denied. We grant the motion to proceed without prepayment of costs or fees.
Though Mr. Hill has exceeded his three-strike limit under 28 U.S.C. § 1915(g), his mandamus petition arguably makes the same allegations of imminent danger that the district court found sufficient to warrant allowing Mr. Hill to proceed without prepayment of costs on certain claims. We therefore defer to the district court in this circumstance.