Filed: Oct. 31, 2018
Latest Update: Mar. 03, 2020
Summary: *AMENDED BLD-014 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-3107 _ IN RE: DIANE R. GOCHIN, Petitioner _ On a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Civ. No. 2:18-cv-03348) _ Submitted Pursuant to Rule 21, Fed. R. App. P. October 18, 2018 Before: AMBRO, VANASKIE and KRAUSE, Circuit Judges (Opinion filed: October 31, 2018) _ OPINION* _ PER CURIAM Pro se petitioner Diane Go
Summary: *AMENDED BLD-014 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-3107 _ IN RE: DIANE R. GOCHIN, Petitioner _ On a Petition for Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Civ. No. 2:18-cv-03348) _ Submitted Pursuant to Rule 21, Fed. R. App. P. October 18, 2018 Before: AMBRO, VANASKIE and KRAUSE, Circuit Judges (Opinion filed: October 31, 2018) _ OPINION* _ PER CURIAM Pro se petitioner Diane Goc..
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*AMENDED BLD-014 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3107
___________
IN RE: DIANE R. GOCHIN,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to E.D. Pa. Civ. No. 2:18-cv-03348)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 18, 2018
Before: AMBRO, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed: October 31, 2018)
_________
OPINION*
_________
PER CURIAM
Pro se petitioner Diane Gochin seeks a writ of mandamus. Because Gochin has
not demonstrated that she is entitled to such relief, we will deny her petition.
In August 2018, in the United States District Court for the Eastern District of
Pennsylvania, Gochin sought to file an in forma pauperis (“ifp”) complaint to raise claims
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
related to an ejectment proceeding in the Court of Common Pleas for Montgomery
County. The District Court allowed her to proceed ifp and, on screening, dismissed the
complaint without prejudice for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii). Gochin then filed an amended complaint. The District Court
subsequently dismissed the amended complaint for failure to state a claim under
§ 1915(e)(2)(B)(ii) but allowed further amendment relating to one of the claims. Gochin
instead sought reconsideration and the District Judge’s recusal, which the District Court
denied.
Gochin presents a petition for a writ of mandamus. Gochin seeks an order
requiring the District Judge’s recusal, requests that the District Judge’s orders in her case
be “declared void,” and requests that the case be transferred to a different venue “to
prevent further manifest injustice.” Mandamus Pet. at 2. Additionally, Gochin asks this
Court to stay the state court ejectment proceedings until “all matters in this case are
resolved.”
Id. at 11. Gochin has also filed a motion for expedited review of her petition
for a writ of mandamus.
A writ of mandamus is a drastic remedy available only in extraordinary
circumstances. See In re Diet Drugs Prods. Liab. Litig.,
418 F.3d 372, 378 (3d Cir.
2005). A petitioner must ordinarily have no other means to obtain the desired relief, and
must show a clear and indisputable right to issuance of the writ. In re Sch. Asbestos
Litig.,
977 F.2d 764, 772 (3d Cir. 1992) (citing Will v. United States,
389 U.S. 90, 96
(1967)).
2
We may consider on mandamus whether a District Judge is obligated to recuse
under 28 U.S.C. § 455, see In re Kensington Int’l Ltd.,
353 F.3d 211, 219–20 (3d Cir.
2003); Alexander v. Primerica Holdings, Inc.,
10 F.3d 155, 163 (3d Cir. 1993), but
Gochin has not shown that she is entitled to an order requiring the District Judge‘s
recusal. Gochin relies on two subsections of § 455: subsection (a) requires recusal when
a judge’s impartiality might reasonably be questioned, and subsection (b)(5)(ii) requires a
recusal when a judge acts as a lawyer in the proceeding. Neither serves as a basis for
recusal here.
Gochin alleges that the District Judge acted as an advocate for the defendants and
is required to recuse in light of his reliance on the screening procedures of 28 U.S.C.
§ 1915(e)(2)(B). However, Gochin’s complaints are based on ordinary judicial decision-
making, and we have repeatedly held that mere dissatisfaction with rulings does not
warrant recusal. See Securacomm Consulting, Inc. v. Securacom Inc.,
224 F.3d 273, 278
(3d Cir. 2000). Additionally, Gochin has presented only vague allegations of prejudice,
and, upon review of the record, we cannot say that a reasonable person would conclude
the District Judge’s impartiality could reasonably be questioned. See In re Kensington
Int’l Ltd.,
368 F.3d 289, 301 (3d Cir. 2004). To the extent that Gochin asks us to vacate
the District Judge’s orders as void and unconstitutional, mandamus relief is not available
because mandamus is not a substitute for appeal. See Cheney v. U.S. Dist. Court,
542
U.S. 367, 380–81 (2004).
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Gochin’s petition also contains a request to change venue. The express terms in
28 U.S.C. § 1404(a) provide that a federal district court may transfer civil actions from
one federal district court to another. While the Supreme Court has found that a federal
court of appeals may effect a transfer by direct order where “unusual circumstances”
require “extraordinary action,” see Koehring Co. v. Hyde Constr. Co.,
382 U.S. 362, 364-
65 (1966), no such unusual circumstances appear based on Gochin’s petition.
Finally, with respect to her request that we order the District Court to stay the state
court proceedings, we do not have the authority to grant that request. See In re Wolenski,
324 F.2d 309, 309 (3d Cir. 1963) (explaining that a district court “had no jurisdiction” to
“issue a writ of mandamus compelling action by a state official”); White v. Ward,
145
F.3d 1139, 1140 (10th Cir. 1998) (explaining that federal courts “lack[] jurisdiction to
direct a state court to perform its duty”).
Accordingly, we will deny the petition for a writ of mandamus. We also deny the
motion for expedited review.
4