In re: Abraham J. Martinez v. United States District Court, 426 U.S. 394, 402 1976 . In

HPS-4 (November 2005) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4682
IN RE: ABRAHAM J. MARTINEZ,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the
District of Delaware
(Related to D. Del. Civ. No. 04-cv-104)
_____________________________________
Submitted Under Rule 21, Fed. R. App. P.
November 4, 2005
BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges
(Filed: February 1, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
Pro se petitioner Abraham Martinez seeks a writ of mandamus to compel the
United States District Court for District of Delaware to effect service of process in his
civil rights suit, pursuant to 28 U.S.C. § 1915(d), and to rule on his motion for the
appointment of counsel.

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The writ of mandamus is an extraordinary remedy, which is justified only in the
presence of exceptional circumstances. Kerr v. United States District Court, 426 U.S.
394, 402 (1976). In order to demonstrate the existence of exceptional circumstances, a
petitioner must show that he has no other adequate means of obtaining relief and that he
has a clear and indisputable right to issuance of the writ. Id. at 403.
In an order entered December 6, 2005, the District Court – acting pursuant to 28
U.S.C. § 1915A – dismissed as frivolous all except the Fourth Amendment claims in
Martinez’s complaint. Also on that date, the District Court entered an order denying
without prejudice Martinez’s motion for the appointment of counsel and an order
requiring Martinez either to pay the remaining amount of the filing fee or to submit a new
application to proceed in forma pauperis within 14 days, or his case would be dismissed
without prejudice. On January 4, 2006, the District Court dismissed the complaint
without prejudice, because Martinez had failed to either pay the remaining filing fee or
return the required in forma pauperis forms within the deadline. In light of the District
Court’s orders, Martinez’s petition for a writ of mandamus will be denied as moot.

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