in Re: Robert Gene Rega v. United States District Court, 426 U.S. 394, 402 1976 . -- 2 of 3 -- 3 Before a writ…

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HLD-054 (December) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4168
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IN RE: ROBERT GENE REGA,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. Civ. No. 08-cv-00156)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
December 30, 2009
Before: Chief Judge SCIRICA, WEIS AND GARTH, Circuit Judges
Opinion filed January 25, 2010
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OPINION
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PER CURIAM.
Petitioner Robert Gene Rega, proceeding pro se, filed this mandamus
petition pursuant to 28 U.S.C. § 1651(a), seeking an order compelling the District Court
to adjudicate petitioner’s motion to compel discovery. For the reasons that follow, we
will deny the petition.

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On the same date, Rega also filed a motion to compel responses to plaintiffs’ first1
and second set of interrogatories. That motion appears to be a separate motion to compel
from the one at issue here.
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I.
Rega is currently an inmate at the State Correctional Institution (“SCI”) at
Greene, in Waynesburg, Pennsylvania. On February 6, 2008, Rega filed a civil rights
action in the Western District of Pennsylvania against the Secretary of the Department of
Corrections (“DOC”) and other DOC and SCI officials, alleging a failure to protect
and/or intervene in connection with an assault by another inmate, deliberate indifference
to his serious medical needs, and retaliation.
Rega alleges that on or about May 25, 2009, he issued discovery requests to
the named defendants. On July 15, 2009, Rega filed a motion to compel responses to his
discovery requests. Rega supplemented this motion on July 27, 2009. Defendants
opposed the motion, and on August 31, 2009, Rega filed a reply. On October 26, 2009,1
Rega filed the instant petition for writ of mandamus seeking an order compelling the
District Court to rule on his motion. Rega believes that the District Court’s delay is
preventing Rega from obtaining evidentiary support for his claims necessary to respond to
defendants’ anticipated motion for summary judgment.
II.
Mandamus is a drastic remedy available only in the most extraordinary of
circumstances. See Kerr v. United States District Court, 426 U.S. 394, 402 (1976).

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Before a writ of mandamus will issue, the petitioner must establish that the writ is not
being used as a substitute for the regular appeals process, that there is no alternative
remedy or other adequate means to obtain the desired relief, and that the right to the relief
sought is “clear and indisputable.” Id. at 403; see also In re Diet Drugs Prods. Liab.
Litig., 418 F.3d 372, 378 (3d Cir. 2005).
As a general rule, “matters of docket control and conduct of discovery” are
within the sound discretion of the District Court. In re Fine Paper Antitrust Litig., 685
F.2d 810, 817 (3d Cir. 1982). Nonetheless, mandamus may be warranted in cases where a
district court’s delay is “tantamount to a failure to exercise jurisdiction.” Madden v.
Myers, 102 F.3d 74, 79 (3d Cir. 1996). This case, however, does not present such a
situation. Rega filed his motion to compel on July 15, 2009, defendants’ responded, and
Rega filed a reply on August 31, 2009. A delay of four months in the disposition of a
motion to compel “does not yet rise to the level of a denial of due process,” and we are
confident that the District Court will enter an order in due course. See Id. (holding that
district court’s delay of four months did not warrant mandamus relief).
Accordingly, Rega’s mandamus petition will be denied. This denial is
without prejudice to petitioner filing a new petition for writ of mandamus if the District
Court does not act within 120 days of the date of this order.

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