In re: Monica Birch-Min

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, VANASKIE and KRAUSE, Circuit Judges. Total Pages: 4. DLD-240

Case: 17-1827

Document: 003112650268

Page: 1

DLD-240

Date Filed: 06/14/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1827
___________
IN RE: MONICA BIRCH-MIN,
Petitioner
____________________________________
On a Petition for Writ of Prohibition from the
United States District Court for the District of New Jersey
(Related to 3:14-cv-00476)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
May 18, 2017
Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges
(Opinion filed: June 14, 2017)
_________
OPINION*
_________

PER CURIAM
Petitioner Monica Birch-Min seeks a writ of prohibition to disqualify a District
Judge from presiding over a case she brought in U.S. District Court in the District of New
Jersey. We will deny the petition.
In 2014, Birch-Min filed a civil action in the District Court against the Plainsboro
Police Department and the Middlesex County Board of Social Services. In a subsequent

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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second amended complaint against the Defendants, she alleged wrongful death and
multiple civil rights violations. Ultimately, the District Court granted the Defendants’
motions for summary judgment and dismissed the second amended complaint with
prejudice. Birch-Min sought both reconsideration of the District Court’s order and
disqualification of the District Judge.1 She also filed this petition for a writ of
prohibition, asking this Court to bar the District Judge from presiding over her case.
Although Birch-Min characterizes her filing as a petition for a writ of prohibition,
it could also be considered a petition for a writ of mandamus insomuch as she requests
that we order the District Judge to recuse himself. The same standard applies regardless
of how the petition is viewed. See United States v. Santtini, 963 F.2d 585, 593-94 (3d
Cir. 1992) (noting that the requirements are the same for obtaining either writ); In re Sch.
Asbestos Litig., 921 F.2d 1310, 1313 (3d Cir. 1990) (explaining that “the form is less
important than the substantive question of whether an extraordinary remedy is available”)
(internal quotations omitted).2
Prohibition and mandamus are drastic remedies available only in extraordinary
cases. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A
petitioner seeking prohibition or mandamus must demonstrate that: “(1) no other

1

After Birch-Min filed this petition, the District Court denied the motion to disqualify.

2

We have explained that “a writ of mandamus may appear more appropriate when the
request is for an order mandating action, and a writ of prohibition may be more accurate
when the request is to prohibit action[.]” In re Sch. Asbestos Litig., 921 F.2d at 1313.
2

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adequate means exist to attain the relief [s]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) (internal quotations
omitted). A writ of prohibition or mandamus should not issue where relief may be
obtained through an ordinary appeal. In re Chambers Dev. Co., Inc., 148 F.3d 214, 223
(3d Cir. 1998).
Birch-Min has not shown that the issuance of an extraordinary writ is warranted.
In her petition for a writ, which is somewhat confusing, she variously alleges that the
District Judge failed to respond to particular allegations of bias and prejudice and that he
ruled that he is not disqualified to preside over her case. Birch-Min’s allegations appear
to rest on the District Court’s factual and legal determinations in resolving her case.
However, “[w]e have repeatedly stated that a party’s displeasure with legal rulings does
not form an adequate basis for recusal.” Securacomm Consulting, Inc. v. Securacom
Inc., 224 F.3d 273, 278 (3d Cir. 2000).3 Birch-Min does not identify any other relevant
basis for bias or prejudice in seeking the District Judge’s removal from the case.4 We

3

We further note that to the extent that Birch-Min presents her petition as a challenge to
the District Court’s summary judgment ruling, she has an alternative recourse as the
District Court’s summary judgment order may be contested on appeal.
4

In her petition for a writ of prohibition, Birch-Min has included as an exhibit the motion
to disqualify and an accompanying affidavit that she filed in the District Court. In the
affidavit, Birch-Min accuses the District Court of prejudice because Birch-Min and her
late husband are members of an “elite society and the facts stated in this case show
wrongfully [sic] behavior by a government entity and the Judge approves of
unconstitutional acts and is attempting to rewrite the law in my case and creating a severe
3

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conclude that Birch-Min’s claim that the District Judge exhibited bias and partiality is
without support. Cf. In re United States, 666 F.2d 690, 694 (1st Cir. 1981) (stating
recusal is not required on the basis of “unsupported, irrational, or highly tenuous
speculation”).
Accordingly, the petition for a writ of prohibition (or mandamus) will be denied.

and callous deprivation of my rights.” Birch-Min does not cite any evidence for her
claims. To the extent that the allegations are before us in this petition, like the District
Court did in ruling on the motion to disqualify, we determine them to be baseless.
4