In re: Burl Howell v. Myers, 102 F.3d 74, 77 3d Cir. 1996 “Indeed, a writ of mandamus may not issue if a

BLD-097 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4483
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In re: Burl Howell, et al,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of Delaware
(Related to 1-12-cv-01112)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
January 25, 2013
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges
(Opinion filed: January 30, 2013)
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OPINION
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PER CURIAM
Burl Anderson Howell, proceeding pro se and in forma pauperis, petitions for a
writ of mandamus compelling the Clerk of the United States District Court for the
District of Delaware to issue summonses to defendants in a civil action Howell initiated.
Howell, proceeding pro se, filed a complaint and an amended complaint pursuant to 42
U.S.C. § 1983. The amended complaint was related to Howell’s conviction of second
degree forgery arising out of his forgery of his brother’s will and second degree perjury.

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See In re Petition Howell
Howell filed a motion to proceed in forma pauperis that was granted. Howell also
filed a motion to transfer the case to the Eastern District of North Carolina, a motion for a
service order, a motion for exemption from paying PACER user fees, a motion for
summary judgment, and a renewed motion for summary judgment. In January 2013, the
District Court dismissed the complaint as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B). The District Court concluded that the defendants who were members of
the judiciary were entitled to judicial immunity, the remaining defendants were not state
actors acting under the color of state law, and that Howell’s remedy, if any, rested in the
Delaware state courts. The District Court denied all pending motions as moot and chose
to not exercise supplemental jurisdiction over any state law claims.
, 2007 WL 1114123 (Del. Apr. 16, 2007). Howell was ordered
to pay restitution to his brother’s estate and his amended complaint concerns events and
litigation surrounding that restitution order. Howell named as defendants a judge and two
justices in the Delaware state courts, a state court commissioner, a claimant of his
deceased brother’s estate, two attorneys, and a limited liability corporation.
Howell filed the instant petition for mandamus in December 2012. In his petition
Howell asks us to direct the Clerk of the District Court to issue summonses to the
defendants named in Howell’s amended complaint pursuant to Rule 4(a) and (b) of the
Federal Rules of Civil Procedure.
Mandamus is a drastic remedy granted only in extraordinary cases. See In re Diet
Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To prevail the petitioner

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must establish that he has “no other adequate means” to obtain relief and that he has a
“clear and indisputable” right to issuance of the writ, and the reviewing court must
determine that the writ is appropriate under the circumstances. Id. at 378-79. Mandamus
cannot be used as a substitute for appeal. Id. at 379; see also Madden v. Myers, 102 F.3d
74, 77 (3d Cir. 1996) (“Indeed, a writ of mandamus may not issue if a petitioner can
obtain relief by appeal.”). Howell’s complaint was dismissed as frivolous and his
pending motions, including his motion for a service order, were denied as moot. To the
extent that Howell’s current request for relief is not moot, the regular appeal process for
civil cases provides an adequate means for Howell to challenge the District Court’s
ruling. Moreover, Howell has not established that he has a clear and indisputable right to
the issuance of the writ. Therefore, we will deny the petition for writ of mandamus.

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