2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-19-2014

In Re: Arthur D'Amario, III

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-2108

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Arthur D'Amario, III" (2014). 2014 Decisions. Paper 600.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/600
DLD-277 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-2108

___________

IN RE: ARTHUR D’AMARIO III, 

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. Crim. No. 06-cr-00112-001)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

June 12, 2014

Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges

(Opinion filed: June 19, 2014)

_________

OPINION

_________

PER CURIAM

Arthur D’Amario III has filed a petition for a writ of mandamus, asking for the 

following relief: (1) “For the forced recusal of Judge Paul S. Diamond from U.S. v. 

D’Amario, No. CR 6-112-PSD (D/NJ), due to bias, judicial fraud and criminality”; (2) 

“For the release of Petitioner from a false imprisonment”; and (3) “That this Court place 

Judge Diamond under arrest and subject him to a comprehensive inpatient mental 

evaluation.” Because D’Amario’s requests are either frivolous or not properly brought in 

a petition for a writ of mandamus, we will deny the petition.
2

As to his first request, while mandamus is available to review a district court’s 

refusal to recuse pursuant to 28 U.S.C. § 455(a), see Alexander v. Primerica Holdings, 

Inc., 10 F.3d 155, 163 (3d Cir. 1993), D’Amario’s request is baseless. We see nothing in 

the record that would give us reason to question the District Court’s impartiality. As to 

his second, mandamus is not a proper means for seeking release from imprisonment, as 

mandamus cannot serve as a substitute for an appeal. See Madden v. Myers, 102 F.3d 

74, 77 (3d Cir. 1996). Indeed, D’Amario’s appeal from the revocation of his supervised 

release is currently pending. See C.A. No. 13-3515. Finally, D’Amario’s third request, 

which is in any event frivolous, is not properly brought in a petition for a writ of 

mandamus. See In re McBryde, 117 F.3d 208, 220 n.7 (5th Cir. 1997).1

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

 

1

In his supplement, D’Amario states that previous failures to release him to his mother as 

part of his supervised release “warrant[] a full criminal investigation by the Circuit.” 

Courts of appeals do not undertake criminal investigations. While a district court has

jurisdiction under 28 U.S.C. § 1361 to issue a writ “to compel an officer or employee of 

the United States . . . to perform a duty owed to the plaintiff,” the writ may issue only for 

“a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). Initiation 

of a criminal investigation is a discretionary act and thus not the proper subject of a 

mandamus request. See, e.g., Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982).