in Re: Michael Berk v. Prosper, 858 F.3d 833, 841 3d Cir. 2017 . Even if Berk’s amended complaint were…

CLD-164 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1262
___________
IN RE: MICHAEL BERK,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 1-17-cv-00091)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
April 18, 2019
Before: CHAGARES, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed: May 17, 2019)
_________
OPINION*
_________
PER CURIAM
Michael Berk petitions for a writ of mandamus directing the District Court to
screen his amended complaint pursuant to 28 U.S.C. §§ 1915 and 1915A. On his
suggestion, we will dismiss his petition as moot.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Berk, who is a federal prisoner, submitted to the District Court a civil rights
complaint along with an application for leave to proceed in forma pauperis. The District
Court denied that application without prejudice to Berk’s ability to file an amended
application. Berk did so and submitted along with that application an amended
complaint. By order entered July 19, 2017, the District Court notified Berk of its
intention to screen his amended complaint pursuant to 28 U.S.C. §§ 1915 and 1915A.
After about a year and a half passed without the District Court having entered a
screening order, Berk filed the mandamus petition at issue here. The sole relief he
requested was an order directing the District Court to screen his amended complaint.
Shortly thereafter, however, Berk filed a letter notifying this Court that the District Court
entered an order on March 5, 2018. In that order, the District Court ruled that Beck’s
filing of an amended complaint was improper, but it screened his initial complaint and
allowed his claims to proceed in part. Beck notified this Court that his mandamus
petition “may be mooted” for that reason. We agree that it is because the delay of which
he complained has ended and his case is moving forward once again.
Berk goes on to “point out” that the District Court screened only his original
complaint and let only that complaint proceed instead of screening his amended
complaint as it initially said it would. Berk also asserts that he thought the filing of his
amended complaint was proper. Berk does not request any relief in this regard, however,
and none is warranted at this time. Mandamus is an extraordinary remedy that generally
is not available if this Court can later grant relief on appeal. See Gillette v. Prosper, 858
F.3d 833, 841 (3d Cir. 2017). Even if Berk’s amended complaint were proper (which we

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need not and do not decide),1 any prejudicial error in disallowing it can be remedied if
necessary on appeal from the District Court’s final judgment.
For these reasons, we will dismiss Berk’s petition.
1 The amendment of pleadings is governed by Fed. R. Civ. P. 15. Before the 2009
amendments to Rule 15, the rule provided in relevant part that a party could amend its
complaint once as a matter of course “before being served with a responsive pleading.”
Fed. R. Civ. P. 15(a)(1)(A) (2009 version). That statement permitted a plaintiff to amend
its complaint once as a matter of course before serving it. The rule was amended in 2009
to provide in relevant part that a party may amend its complaint once as a matter of
course “within 21 days after serving it.” Fed. R. Civ. P. 15(a)(1)(A); see also Fed. R.
Civ. P. 15 advisory committee note to 2009 amendment. The District Court apparently
interpreted this amendment as requiring a plaintiff to actually serve its complaint before
amending it once as a matter of course. We question that interpretation, cf. United States
ex rel. D’Agostino v. EV3, Inc., 802 F.3d 188, 193 (1st Cir. 2015), but we need not and
do not address the issue in this case.

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