2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-26-2011

Jay Yunik v. Catherine McVey

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1657

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Recommended Citation

"Jay Yunik v. Catherine McVey" (2011). 2011 Decisions. Paper 1370.

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GLD-163 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1657

___________

IN RE: JAY V. YUNIK,

Petitioner

____________________________________

On Petition for Writ of Mandamus from the

United States District Court for the Western District of Pennsylvania

(Related to D.C. Civil Action No. 08-cv-01706)

____________________________________

Submitted Under Rule 21, Fed R. App. P.

April 14, 2011

Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

(Opinion filed April 26, 2011)

_________

OPINION

_________

PER CURIAM 

Jay V. Yunik is a pro se prisoner currently in the custody of the Pennsylvania 

Department of Corrections (“DOC”) at the State Correctional Institution at Fayette. 

In December 2008, Yunik commenced a civil rights action against the Attorney 

General of Pennsylvania and several officials and employees of the DOC, and of the 

Pennsylvania Board of Probation and Parole. On screening, the District Court dismissed 

several claims in Yunik‟s amended complaint. Defendants then moved to dismiss 
2

Yunik‟s remaining claims. In a November 2010 decision, the District Court granted in 

part, and denied in part, the motion to dismiss. 

In March 2011, Yunik filed in this Court a petition for writ of mandamus asking us 

to: 1) remove District Court Judge Ambrose from the case; and 2) instruct the District 

Court to rule on several motions that he filed in February 2011, including a motion to 

appoint counsel, a motion for injunctive relief, two motions to compel discovery, and a 

motion to extend the deadlines set forth in the case management order.

A writ of mandamus is an extraordinary remedy. See 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.‟” See In re 

Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted). 

Yunik alleges that Judge Ambrose engaged in improper behavior when, in her 

November 2010 opinion granting in part, and denying in part, Defendants‟ motion to 

dismiss, she included background information regarding Yunik‟s criminal conviction. 

Yunik alleges that her inclusion of those facts was somehow prejudicial to his current 

case. 

As an initial matter, Yunik has not shown that he has no other remedy available, as 

he has not filed a motion to recuse Judge Ambrose in the District Court. See In re 
3

Kensington Int‟l Ltd., 353 F.3d 211, 224 (3d Cir. 2003). However, even if we were to 

assume that Yunik had no other adequate means to challenge Judge Ambrose‟s 

involvement in his case, he plainly has not shown that he has a clear and indisputable 

right to the writ.

“The test for recusal under 28 U.S.C. § 455(a) is whether a reasonable person, 

with knowledge of all the facts, would conclude that the judge‟s impartiality might 

reasonably be questioned.” Id. Yunik‟s unsupported allegation of improper conduct does 

not warrant Judge Ambrose‟s disqualification. Certainly, her recitation of information 

that is already of public record does not demonstrate a lack of impartiality. To the extent 

Yunik seeks to have Judge Ambrose withdraw pursuant to 28 U.S.C. § 144, he has not 

stated facts that would convince a reasonable person that bias exists, nor has he stated 

facts that show bias that is personal in nature, see United States v. Thompson, 483 F.2d 

527, 528 (3d Cir. 1973).

As to Yunik‟s request that we direct the District Court to rule on several motions that he 

filed in February 2011, because the District Court has already done so, we deny the 

request as moot. 

For the foregoing reasons, mandamus relief is not appropriate. We will deny the petition.