                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2008

In Re: Juan M. Vazquez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2728




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Recommended Citation
"In Re: Juan M. Vazquez " (2008). 2008 Decisions. Paper 767.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/767


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BLD-247                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2728
                                       ___________

                             IN RE: JUAN M. VAZQUEZ,
                                                  Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
                United States District Court for the District of New Jersey
                       (Related to D. N.J. Civ. No. 03-CV-05596)
                      ____________________________________

                    Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    July 3, 2008
                Before: MCKEE, RENDELL and SMITH, Circuit Judges

                               (Opinion filed: July 30, 2008)
                                        _________

                                         OPINION
                                         _________

PER CURIAM

       Juan M. Vazquez has filed a petition for a writ of mandamus, seeking extensive

relief. For the reasons that follow, we will deny the petition.

       We discern Vazquez’s petition to contain essentially five categories of claims: (1)

Vazquez asks us to compel the District Court judge to accept certain evidence, schedule a

discovery conference, enter certain injunctions, enter certain judgments, and asks us to

compel the District Court judge to follow certain legal principles; (2) Vazquez asks to
have us compel the District Court judge to recuse himself from the underlying case; (3)

Vazquez asks us to compel certain defendants to comply with a consent order entered in

another case; (4) Vazquez seeks to have the District Court docket sheet corrected to

reflect that he has asked for money damages and that he seeks a jury trial; and (5)

Vazquez seeks to reinstate his appeal of the District Court’s May 31, 2005 order denying

his motion for reconsideration.

       We will deny Vazquez’ mandamus petition. Mandamus is an extraordinary

remedy. Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402 (1976). Within the discretion of the

issuing court, mandamus traditionally may be “used . . . only ‘to confine an inferior court

to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority

when it is its duty to do so.’” Id. (citations omitted). A petitioner must show “‘no other

adequate means to attain the desired relief, and . . . a right to the writ [that] is clear and

indisputable.’” In re Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted).

       The matters included in the first category of claims listed above can all be

addressed by way of appeal. Mandamus is not a substitute for appeal. Cheney v. U.S.

Dist. Ct., 542 U.S. 367, 380-81 (2004). Vazquez cannot show that he is without an

adequate means for relief as to these claims. Accordingly, mandamus relief is not

appropriate here.

       The second category of claims involves the District Court Judge’s refusal to recuse

himself. We may review the District Court’s refusal to recuse pursuant to 28 U.S.C.



                                                2
§ 455. See In re Antar, 71 F.3d 97, 101 (3d Cir. 1995). To determine whether the

extraordinary writ should issue, we review the District Court’s 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, the judge must recuse under § 455(a). See id. at 302. First, any

disagreement Petitioner has with Judge Simandle’s legal and procedural rulings “certainly

cannot be equated with the showing required to so reflect on [the judge’s] impartiality as

to dictate recusal.” Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990).

Petitioner’s remedy would be to appeal those rulings with which he disagrees. Second,

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), such as Vazquez’

unfounded claims that the District Judge gave authorization to carry out a “racial hate

murder.” Vazquez’ conclusory and speculative statements are insufficient to establish a

“clear and indisputable” right to the issuance of a writ. Haines v. Liggett Group, Inc., 975

F.2d 81, 89 (3d Cir. 1992).

       The relief Vazquez seeks in his third and fourth categories, injunctive relief and

correction of the District Court docket, are matters that he should raise in the District

Court, rather than in a petition for a writ of mandamus. To the extent he has raised the

issues and the District Court has denied relief, he may raise those issues on appeal.

Finally, it appears that the matter raised by the fifth claim is no longer an issue, for the



                                               3
reasons set forth in the margin.1

       For the foregoing reasons, we will deny the petition for a writ of mandamus.




   1
     In late June 2005, Vazquez erroneously filed an amended notice of appeal in this
Court. The Clerk forwarded the amended notice to the District Court to be docketed and
certified to our Court. The notice appears on the District Court docket, but apparently it
was not certified to this Court by the District Court Clerk. At this point, however, that
appeal is moot. Vazquez sought to appeal the May 31, 2005 denial of his motion to
reconsider the District Court’s December 17, 2004 order. We vacated the December
order after remand from the Supreme Court. Thus, there is nothing left for the District
Court to “reconsider.” To the extent Vazquez believes that issues decided in the May 31,
2005 denial continue to affect the case, he may raise those issues on appeal at the
conclusion of the case.                      4
