                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2005

Gueson v. Sheppard
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1898




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Recommended Citation
"Gueson v. Sheppard" (2005). 2005 Decisions. Paper 1033.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1033


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                                                NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                NO. 04-1898
                             ________________

                 EMERITA T. GUESON, INDIVIDUALLY,
             AND AS PRESIDENT OF WOMEN'S HEALTH, INC.;
                       WOMEN'S HEALTH, INC.


                                       v.

            ALBERT SHEPPARD, JUDGE, personally, as a politician, and
        acting under the color of state law; NORMAN ACKERMAN, JUDGE,
                 personally, as a politician, and acting under the color of
                  state law; JOHN HERRON, JUDGE, personally, as a
                politician, and acting under the color of state law; ALEX
           BONAVITACOLA, JUDGE, personally, as a politician and acting
              under the color of state law; MARK BERNSTEIN, JUDGE,
                 personally, as a politician, and acting under the color of
   state law; PHILADELPHIA COUNTY COURT OF COMMON PLEAS, FIRST
JUDICIAL DISTRICT, PROTHONOTARY OF THE COURT OF COMMON PLEAS,
              acting under the color of state law, through and by its agents,
      employees; FRANCIS G. GREY; LAURA GELDMAN, ESQ., personally,
          and acting under the color of state law; ROSEMARY PINTO, ESQ.,
                 personally, and acting under the color of state law; JILL
             ANDERSON, ESQ., personally, and acting under the color of
             state law; MARCIA DOWNING, ESQ., personally, and acting
           under the color of state law; FELDMAN-PINTO, P.C., personally,
          and acting under the color of state law; CHRISTOPHER WARREN,
                ESQ., personally, and acting under the color of state law;
          TAWANA M. MCCULLERS, personally, and acting under the color
          of state law; GUSTINE PELAGATTI; BERNARD NATHANSON;
             PHILADELPHIA COUNTY, politically, and acting under the
                 color of state law, through and by its agents, employees

                              Emerita T. Gueson, M.D.,

                                            Appellant
                         ____________________________________

                       On Appeal From the United States District Court
                           For the Eastern District of Pennsylvania
                                 (D.C. Civ. No. 00-cv-01117)
                        District Judge: Honorable R. Barclay Surrick
                       _______________________________________

                          Submitted Under Third Circuit LAR 34.1(a)
                                       May 20, 2005

                BEFORE: ALITO, SMITH and BECKER, CIRCUIT JUDGES

                                    (Filed: June 10, 2005)

                                 _______________________

                                        OPINION
                                 _______________________

PER CURIAM

          Dr. Emerita T. Gueson, pro se, appeals an order of the United States District Court

for the Eastern District of Pennsylvania denying her motion to stay her pendent state

claims pending the United States Supreme Court’s decision regarding her petition for a

writ of certiorari. Although she filed a notice of appeal, the relief that Gueson actually

seeks in her appeal is in the nature of mandamus, as she asks this Court to direct the

recusal of the District Judge, the Honorable R. Barclay Surrick. We will dismiss the

appeal of the District Court’s March 8, 2004 order as moot, and we will deny mandamus

relief.

          In 1998, Gueson, president of Women’s Health, Inc., filed two actions in the



                                               2
Philadelphia Court of Common Pleas. The law firm of Feldman-Pinto, P.C. represented

her in both lawsuits. Dissatisfied with the results in both of these cases, Gueson and

Women’s Health, Inc. filed malpractice suits against Feldman-Pinto, P.C., and other

defendants, in the Philadelphia Court of Common Pleas. See Gueson, et al. v. Feldman,

et al., August Term, 1998, No 91361, and Gueson, et al. v. Feldman, et al., October Term,

1998, No. 3777. Judges Sheppard and Ackerman of the Court of Common Pleas

dismissed the suits with prejudice.

       In March 2000, Dr. Gueson and Women’s Health, Inc., displeased with the

dismissal of the malpractice suits, filed the underlying action in the United States District

Court for the Eastern District of Pennsylvania against five Philadelphia Court of Common

Pleas judges, including Ackerman and Sheppard; the City of Philadelphia; Feldman-

Pinto, P.C.; Gustine Pelagatti, an attorney who had represented one of Gueson’s former

patients in an unrelated medical malpractice action; and Bernard Nathanson, an expert

witness in that action. Gueson alleged civil rights violations as well as violations of the

Racketeer Influenced Corrupt Organizations (“RICO”) statutes and other federal statutes.

She also asserted numerous state law claims.

       As explained in this Court’s opinion at C.A. No. 02-3480, the District Court, per

Judge Surrick, granted motions to dismiss by all defendants except Feldman-Pinto, P.C.

with prejudice. Gueson entered a settlement agreement with Feldman-Pinto, P.C. and

dismissed her suit against them. Gueson’s state law claims were dismissed without



                                              3
prejudice, and the District Court closed her case.1

       Gueson appealed, and this Court affirmed the District Court’s orders on July 11,

2003. On October 9, 2003, Gueson filed a petition for a writ of certiorari in the Supreme

Court. On the following day, and on March 1, 2004, Gueson filed motions in the District

Court to have her pendent state claims stayed until the petition for certiorari was decided.

In an order entered March 8, 2004, Judge Surrick denied Gueson’s motions for a stay.

Gueson filed a notice of appeal on March 31, 2004. On April 26, 2004, the Supreme

Court denied certiorari. In September 2004, Gueson filed an appellate brief, which she

has called a petition for a writ of mandamus. In her appellate brief, she asks this court to

direct Judge Surrick to recuse himself under either 28 U.S.C. § 455(a) or § 455(b)(5)(i).

She claims that Judge Surrick, who once served on the Delaware County Court of

Common Pleas, was biased in favor of the state court judge defendants from the

Philadelphia Court of Common Pleas because of his loyalty to the state judicial system.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. With respect to Gueson’s

appeal of the District Court’s March 8, 2004 order, we will dismiss the appeal as moot.

In her motion, Gueson requested stay of her state claims pending the outcome of her

petition for certiorari. The Supreme Court has since denied certiorari. The relief Gueson

sought is, therefore, a nullity at this point.




  1
    The case as to Women’s Health, Inc., at E.D. Pa. Civ. No. 00-cv-01117 was
dismissed on October 3, 2002, for failure to prosecute.

                                                 4
       To the extent that Gueson’s appellate brief can be construed as a mandamus

petition, it is denied. A writ of mandamus will issue only in extraordinary circumstances.

See Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). A litigant seeking mandamus relief

must show that he or she has no alternative remedy and that he or she has a clear and

indisputable right to the relief sought. See Kerr v. United States Dist. Court, 426 U.S.

394, 403 (1976).

       Gueson cannot show that she is entitled to have Judge Surrick recuse himself. Her

claim that Judge Surrick is biased toward the state judicial system is utterly unsupported.

Recusal is, therefore, not appropriate under § 455(a). Nor is recusal appropriate under §

455(b)(5)(i), as Gueson makes no supportable claim that Judge Surrick or his relatives are

in any way parties to the proceeding. Moreover, recusal of Judge Surrick at this point

appears to be a moot point, as Gueson’s federal case is closed and her appellate

proceedings exhausted.
