                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2006

In Re: Siyi Zhou
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2910




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Recommended Citation
"In Re: Siyi Zhou " (2006). 2006 Decisions. Paper 418.
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CPS-316                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 06-2910
                                    ________________

                                    IN RE: Siyi Zhou,
                                                  Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Eastern District of Pennsylvania
                            (Related to Civ. No. 06-cv-00100)
                     District Judge: Honorable Clifford Scott Green

                       ____________________________________

                       Submitted Under Rule 21, Fed. R. App. Pro.
                                   August 31, 2006

            Before: BARRY, SMITH AND NYGAARD, CIRCUIT JUDGES

                              (Filed:   September 25, 2006)

                               _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              Petitioner Siyi Zhou asks that we issue a writ of mandamus compelling the

United States District Court for the Eastern District of Pennsylvania to correct certain

alleged errors on the docket of his pending case and to direct the Clerk of the Court to

refund him $211. He has also requested that we order the recusal of the District Judge
presiding over his case as well as vacate the District Court order dismissing his civil

action. For the reasons below, we will deny his petition and motion to vacate.

              Zhou claims that he is the victim of a criminal conspiracy involving

insurance companies, government officials, lawyers, doctors and multiple police

departments in Pennsylvania. Since 1992, he has contacted numerous federal law

enforcement agencies regarding this conspiracy. In January 2006, Zhou commenced an

action in the United States District Court for the Eastern District of Pennsylvania by filing

a document titled “Motion to Compel U.S. Attorney General Alberto Gonzales to Accord

Victim’s Rights and to Provide Victim’s Services.”1 (App. D.) Zhou was charged the

$250 filing fee and assigned the docket number 06-cv-00100. The document appeared as

the second entry on the docket, after the entry “COMPLAINT against ALBERTO

GONZALES.” Zhou wrote several letters regarding what he regarded as errors on the

docket, such as the fact that his motion is treated as a complaint and that his first filing,

the motion, appeared at entry number two.

              Eventually, on June 8, 2006, he filed this petition for a writ of mandamus.

In addition to the correction of the errors that he found in the docket sheet, Zhou requests

a refund of $211. He claims that he should not have been charged the $250 filing fee,


   1
    This document is styled as a motion under 18 U.S.C. § 3771(d)(3) to compel the
Attorney General to grant Zhou the protections accorded to crime victims, as listed in
§ 3771(a); but it also alleges that a series of Attorneys General “deprived Movant of
rights secured by the United States Constitution, Amendment 14, Section 1 (“Nor deny to
any person within its jurisdiction the equal protection of the laws”) and by 42 U.S.C. §
1981 (“Equal rights under the law”).” (App. D at 2.)

                                               2
since his “motion to compel” is not a complaint. Rather, he claims that he should only

have been charged $39, the miscellaneous fee for “filing or indexing any document not in

a case or proceeding for which a filing fee has been paid.” United States District Court

for the Eastern District of Pennsylvania, “Miscellaneous Fee Schedule” available at

http://www.paed.uscourts.gov/documents/notices/fees/fees_m2a.pdf.

               Mandamus is a drastic remedy available only in the most extraordinary of

situations in response to an act amounting to a judicial usurpation of power. In re

Nwanze, 242 F.3d 521, 524 (3d Cir. 2001). A petitioner must show that he has a clear

and indisputable right to issuance of the writ, and it will issue only when the party

seeking the writ can show that he has no other adequate means to obtain the relief

requested. In re Flat Glass Antitrust Litig., 288 F.3d 83, 91 (3d Cir. 2002).

               Zhou’s “motion to compel” is, for all intents and purposes, a complaint; and

it was properly treated as one by the Clerk of the Court. Rather than being defined by its

caption, a “complaint” is “[t]he initial pleading that starts a civil action and states the

basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for

relief.” BLACK’S LAW DICTIONARY 285 (6th ed.1990). Under 28 U.S.C. § 1914 (a),

“[t]he clerk of each district court shall require the parties instituting any civil action, suit

or proceeding in such court, whether by original process, removal or otherwise, to pay a

filing fee of $250, except that on application for a writ of habeas corpus the filing fee

shall be $5.” Zhou’s “motion” initiated the action in the District Court, stating the basis

of his claim and his demand for relief. Since his “motion” was not a petition for habeas

                                                3
corpus, the Clerk of the Court properly assessed the $250 filing fee required by law.

Further, we note that there are no material errors on the docket sheet that require the

corrections that Zhou requests.

              Zhou has supplemented his mandamus petition with a request for the

recusal of the District Court judge who is presiding over his case. This request is without

merit. A federal judge is required to recuse himself for personal bias or prejudice, or

where his impartiality may reasonably be questioned. See 28 U.S.C. §§ 144 and 455.

Although he claims that the District Judge is biased against him, Zhou provides no

evidence of bias. Zhou merely recites instances when the Judge failed to grant various

motions and requests. Based on Zhou’s motion and the record of the proceedings below,

we see no evidence that the District Judge is biased or that his impartiality may

reasonably be questioned. Because Zhou is unable to show that he has a right to the

issuance of the writ, his petition is denied.2




   2
    On June 12, the District Court dismissed Zhou’s action for lack of jurisdiction. On
July 10, Zhou filed a document in this Court, styled as a “Motion to Vacate the District
Court Order.” Zhou makes clear that he does not want his motion to vacate to be treated
as a notice of appeal pursuant to L.A.R. 3.4 and never intended for it to be treated as such.
Rather, he wants his motion ruled upon in this Court. Zhou points to 28 U.S.C. § 2106 to
argue that an appellate court may “vacate. . . any judgment, decree, or order of a court
lawfully brought before it for review.” However, because Zhou never filed a notice of
appeal of the District Court’s order, the order has not been brought before us for review,
see Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985), and therefore, we cannot vacate it.
Accordingly, his motion is denied.

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