Opinion
No. 07-5244.
Filed On: October 19, 2007.
BEFORE: Ginsburg, Chief Judge, and Henderson and Tatel, Circuit Judges.
ORDER
Upon consideration of the motion for leave to proceed in forma pauperis, the motion for appointment of counsel, and the petition for writ of mandamus and supporting memorandum of law, it is.
ORDERED that the motion for leave to proceed in forma pauperis be granted. Although this court previously has concluded that petitioner is ineligible to proceed in forma pauperis in a civil action or appeal, see Ibrahim v. District of Columbia, 208 F.3d 1032, 1036-37 (D.C. Cir. 2000), this ineligibility does not extend to petitioner's mandamus petition. See In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997). The petition appears to be a true mandamus petition, seeking to compel a lawful exercise of the district court's authority, rather than "an alternative device for obtaining the relief sought in civil actions that are covered by the [Prisoner Litigation Reform Act, 28 U.S.C. § 1915]."In re Nagy, 89 F.3d 115, 116 n. 1 (2d Cir. 1996). It is.
FURTHER ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is.
FURTHER ORDERED that the petition for writ of mandamus be denied. The district court properly refused to allow petitioner to file his complaint, which would commence a civil action subject to 28 U.S.C. § 1915, without prepayment of fees or costs. Petitioner has incurred three "strikes" under 28 U.S.C. § 1915(g). Because he made no allegation of imminent danger of serious physical injury, petitioner was therefore ineligible to file his civil action in forma pauperis. See 28 U.S.C. § 1915(g).
Pursuant to D.C. Cir. Rule 36, this disposition will not be published.