862 F.2d 870
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
In re Raymond B. NOTTINGHAM, Jr., Petitioner.
No. 88-8033.
United States Court of Appeals, Fourth Circuit.
Submitted: Sept. 30, 1988.
Decided: Nov. 21, 1988.
Raymond B. Nottingham, Jr., petitioner pro se.
Before JAMES DICKSON PHILLIPS and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
Raymond B. Nottingham, Jr., a federal prisoner, petitions this Court for a writ of prohibition ordering Judge MacKenzie to disqualify himself in two cases Nottingham has filed, Nottingham v. Federal Bureau of Prisons, Misc. No. 88-203-N (E.D.Va.), and Nottingham v. Ford, Misc. No. 88-242-N (E.D.Va.). We deny the petition.
Two days after Nottingham filed this petition, the district court dismissed No. 88-203-N, Nottingham v. Federal Bureau of Prisons, because of Nottingham's failure to pay the filing fee. Because the case is no longer pending before the district court, we decline to consider the merits of Nottingham's petition insofar as it relates to Judge MacKenzie's failure to disqualify himself in No. 88-203-N. Nottingham may challenge Judge MacKenzie's action on appeal, if he chooses to file one. Cf. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979) (petition for writ of mandamus may not be used as substitute for appeal).
Nottingham v. Ford, No. 88-242-N, is still pending before the district court. Accordingly, mandamus is a proper vehicle for challenging Judge MacKenzie's refusal to disqualify himself from hearing that case. In re Beard, 811 F.2d 818, 827 (4th Cir.1987).
In Ford, Nottingham named Judges MacKenzie and Kellam as defendants "for adjudicatory purposes only." It is obvious from the complaint that Nottingham named these judges as defendants to prevent them from presiding over his suit against Ford. In these circumstances, we find that Judge MacKenzie did not err in denying Nottingham's disqualification motion. See United States v. Studley, 783 F.2d 934, 940 (9th Cir.1986); United States v. Grismore, 564 F.2d 929, 933 (10th Cir.1977), cert. denied, 435 U.S. 954 (1978); Ely Valley Mines, Inc. v. Lee, 385 F.2d 188, 190-91 (9th Cir.1967); Andersen v. Roszkowski, 681 F. Supp. 1284, 1288-89 (N.D.Ill.1988).
Accordingly, we deny Nottingham's petition for a writ of mandamus. Leave to proceed in forma pauperis is granted.
PETITION DENIED.
