ALD-144                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-1687
                                       ___________

                            IN RE: JOSEPH W. HIGGINS,
                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                       (Related to D.C. Civil No. 3:10-cv-05969)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                   March 24, 2011

           Before: SCIRICA, HARDIMAN, and VANASKIE, Circuit Judges

                              (Opinion filed: April 7, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Joseph Higgins, proceeding pro se, petitions this Court for a writ of mandamus

directing the District Court to rule on the merits of an amended complaint that it recently

dismissed with prejudice. For the reasons that follow, we will deny the petition.

                                             I.

       In July 2010, Higgins filed a complaint in the United States District Court for the

District of New Jersey against District Judge Stanley R. Chesler and Magistrate Judge
Michael A. Shipp. Chief Judge Theodore A. McKee of this Court designated Judge Juan

R. Sanchez of the United States District Court for the Eastern District of Pennsylvania to

preside over Higgins’s civil action. 1

       About a month after filing his complaint, Higgins filed an amended complaint and

subsequently moved for injunctive relief. His amended complaint alleged that Judge

Chesler and Magistrate Judge Shipp had conspired to dismiss a previous civil action he

had filed in order to retaliate against him for having moved to recuse Magistrate Judge

Shipp in a third civil action. On February 22, 2011, the District Court, acting sua sponte,

dismissed the amended complaint with prejudice for failure to state a claim and denied

Higgins’s motion for injunctive relief as moot. In doing so, the court explained that

“[b]ecause the dismissal of [Higgins’s earlier case] was a judicial action, and because no

facts are alleged suggesting the defendants acted in the complete absence of all

jurisdiction, Judge Chesler and Magistrate Judge Shipp are immune from suit.” (Dist. Ct.

Order of Feb. 22, 2011, at n.1.) Higgins subsequently filed a timely motion for

reconsideration, which the court denied on March 9, 2011.

       On March 16, 2011, Higgins filed the instant petition, seeking a writ of mandamus

compelling the District Court to serve summonses on Judge Chesler and Magistrate Judge

Shipp, and to adjudicate his claim against them “on the merits.”




       1
        The references in this opinion to actions taken by the District Court refer to
actions taken by Judge Sanchez.
                                             2
                                               II.

       A writ of mandamus is a drastic remedy available only in extraordinary situations.

See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To obtain a

writ of mandamus, 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, 130 S. Ct. 705, 710 (2010) (per curiam) (internal quotation marks and citation

omitted). Mandamus is not a substitute for an appeal, and “a writ of mandamus may not

issue if a petitioner can obtain relief by appeal.” Madden v. Myers, 102 F.3d 74, 77 (3d

Cir. 1996).

       In this case, the District Court entered a final appealable order and closed

Higgins’s civil action. Because Higgins has an adequate means of challenging the court’s

judgment — by filing an appeal — mandamus relief is not warranted here.2

Accordingly, we will deny the petition. To the extent Higgins seeks attorney’s fees,

costs, and other expenses, that request is denied.




       2
        We note, without deciding, that an appeal from the District Court’s judgment
would almost certainly fail, for it does not appear that the court erred in its application of
the doctrine of judicial immunity, see Stump v. Sparkman, 435 U.S. 349, 355-56 (1978),
or abused its discretion in denying Higgins’s motion for reconsideration.
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