Robert Ervin v. David Ebbert , 518 F. App'x 73 ( 2013 )

CLD-198 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1508
___________
ROBERT ERVIN, a/k/a Robert Erving as
listed on the complaint,
Appellant
v.
WARDEN DAVID EBBERT
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3:12-cv-02481)
District Judge: Honorable Edwin M. Kosik
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 18, 2013
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 3, 2013)
_________
OPINION
_________
PER CURIAM
Pro se Appellant Robert Ervin appeals from an order of the United States District
Court for the Middle District of Pennsylvania dismissing his petition for writ of
mandamus. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District
Court’s denial of a mandamus petition for an abuse of discretion, but our review of
whether the requirements for mandamus have been satisfied as a matter of law is plenary.
Arnold v. Blast Intermediate Unit 17, 843 F.2d 122, 125 (3d Cir. 1988). For the reasons
set forth below, we will summarily affirm the judgment of the District Court. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
Because we primarily write for the parties, we will only recite the facts necessary
for our discussion. Ervin is currently an inmate at the United States Penitentiary Canaan
(“USP-Canaan”), Waymart, Pennsylvania, where he was employed by Unicor. Ervin
alleges that he was wrongfully terminated from Unicor when he failed to show up for
work because the prison doctor had medically excused him from work due to the flu. On
December 12, 2012, after exhausting his administrative remedies, Ervin filed a petition
for writ of mandamus, asking the District Court to direct the BOP to reinstate him to his
Unicor job at USP-Canaan. A Magistrate Judge recommended that Ervin’s petition be
denied because Ervin has no constitutional right to a prison job and there are other
adequate legal remedies available to him. Ervin filed objections to the Report and
Recommendation. Unpersauded by Ervin’s arguments, the District Court adopted the
Report and Recommendation, denying his petition for writ of mandamus. Ervin filed a
timely appeal.
We agree with the District Court’s decision. A district court may issue a writ of
mandamus under 28 U.S.C. § 1361 to compel “an officer or employee of the United
States . . . to perform a duty owed to the plaintiff.” Mandamus “is intended to provide a
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remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602,
616 (1984). See also Stehney v. Perry, 101 F.3d 925, 934 (3d Cir. 1996) (mandamus
relief is a drastic remedy only to be invoked in extraordinary circumstances).
Here, Ervin’s petition for writ of mandamus requests that the District Court direct
the BOP to reinstate him to his Unicor job. However, as the District Court explained,
prison inmates have no constitutionally protected interest in retaining prison employment.
See James v. Quinlan, 866 F.2d 627, 629-630 (3d Cir. 1989) (holding that prisoners have
no liberty interest in their prison jobs). Nor are we aware of any other basis for
concluding that the BOP has a “clear nondiscretionary duty” to reinstate him.
Moreover, Ervin is requesting that the District Court intervene in prison
management by asking the Court to direct the BOP to reinstate his employment.
However, courts will generally not interfere with prison administrative matters, such as
the decision to terminate Ervin from his job, and will afford significant deference to
judgments of prison officials regarding prison regulation and administration. See Fraise
v. Terhune, 283 F.3d 506, 515 (3d Cir. 2002). Therefore, we agree with the District
Court that Ervin has failed to show that he has a clear and indisputable right to the
issuance of the writ of mandamus.
For these reasons, the appeal presents no substantial question and we will
summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
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