Alton Brown, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, GREENAWAY JR. and SLOVITER, Circuit Judges. Total Pages: 3. DLD-041. Brown's motion to stay the District Court proceedings pending our decision is denied as moot.

Case: 15-3180

Document: 003112146241

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DLD-041

Date Filed: 12/04/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3180
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IN RE: ALTON D. BROWN,
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. 2-07-cv-03771)
____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.
November 5, 2015
Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges
(Opinion filed: December 4, 2015)
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OPINION
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PER CURIAM
Alton Brown, a Pennsylvania prisoner proceeding pro se, has filed a petition for a
writ of mandamus, requesting that we order the District Judge to recuse. For the reasons
set forth below, we will deny the petition.
In September 2007, Brown filed the underlying civil action, which alleges
unlawful exposure to second-hand smoke. Brown has engaged in extensive litigation in
this case, including filing a previous mandamus petition before this Court. That petition

Case: 15-3180

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Date Filed: 12/04/2015

also sought recusal of the District Court judge and we denied it, describing Brown’s
complaints as “mere dissatisfaction” with the District Court’s rulings.
Despite this opinion, Brown has filed another mandamus petition, again seeking
recusal. He claims the District Court is “attempting to force” him to respond to the
Defendants’ motion for summary judgment without the benefit of the case files Brown
has accumulated. He also claims more generally that the District Judge has failed to
discipline the Defendants for allegedly preventing him from adequately responding to the
summary judgment motion. Brown filed a renewed motion for recusal in July 2015,
which the District Court denied. He relies on 28 U.S.C. §§ 144, 455 to support this
petition for a writ of mandamus.
Upon review, we deny Brown’s petition. Mandamus is an extraordinary remedy.
See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). To obtain mandamus relief, a
petitioner must show that “(1) no other adequate means exist to attain the relief he
desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the
writ is appropriate under the circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190
(2010) (per curiam) (internal quotation marks and citation omitted). Mandamus is not a
substitute for appeal. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004)
(citations omitted); Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).
First, to the extent that Brown seeks mandamus relief related to any refusal to
recuse under 28 U.S.C. § 144, mandamus relief is not available because Brown may still
take an appeal from that order after final judgment is entered in his District Court case.
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Date Filed: 12/04/2015

See In re Sch. Asbestos Litig., 977 F.2d 764, 774-76 (3d Cir. 1992). To the extent that
Brown argues that recusal is proper under 28 U.S.C. § 455 on the basis that the
impartiality of the judge presiding over his case might reasonably be questioned, we may
consider the issue on mandamus. See In re Kensington Int’l Ltd., 353 F.3d at 219-20;
Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir. 1993). To determine
whether the extraordinary writ should issue, we review the decision not to recuse for
abuse of discretion. See In re Kensington Int’l Ltd., 368 F.3d 289, 301 & n.12 (3d Cir.
2004). If a reasonable person, with knowledge of all the facts, would reasonably question
a judge’s impartiality, that judge must recuse under § 455(a). See id. at 302.
Given the facts of this case, the District Judge does not need to recuse. Brown’s
primary basis for recusal, his continued dissatisfaction with District Court rulings, does
not require recusal. Furthermore, recusal is not required on the basis of “unsupported,
irrational, or highly tenuous speculation.” In re United States, 666 F.2d 690, 694 (1st Cir.
1981).
For these reasons, the District Judge did not err in denying Brown’s motion and
declining to recuse from hearing Brown’s case. Brown’s petition for a writ of mandamus
is denied. His motion to stay the District Court proceedings pending our decision is
denied as moot.

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