BLD-141 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-4200

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IN RE: ALTON D. BROWN,

Petitioner

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On a Petition for Writ of Mandamus from the

United States District Court for the Eastern District of Pennsylvania

(Related to E.D. Pa. Civ. No. 13-cv-00465)

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

December 19, 2013

Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

(Opinion filed: January 6, 2014)

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OPINION

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PER CURIAM

Alton Brown seeks a petition for a writ of mandamus, requesting that we order the 

District Judge and the Magistrate Judge presiding over his District Court case to recuse.

1

 

1 Brown previously filed a recusal motion in the District Court. The District Judge 

considered it as a motion for his and the Magistrate Judge’s recusal under 28 U.S.C. 

§§ 144 & 455. The District Judge denied it as to himself and ruled that he had no power 

to rule on it as to the Magistrate Judge under In re Kensington Int’l Ltd., 353 F.3d 211, 

223 n.12 (3d Cir. 2003). Brown took an appeal (C.A. No. 13-3844), but it was dismissed 

for failure to prosecute in an order entered on November 26, 2013. 
2

He also asks that we stay the District Court proceedings pending our ruling on his 

petition.

Brown alleges that the two jurists are biased and not impartial, primarily detailing 

various rulings against him or in favor of the defendants. He contends that some of his 

motions and claims have been ignored and that some of his allegations or arguments have 

been misstated or misrepresented. In further support of his mandamus petition, he notes 

that the District Judge presides over other cases of his and enters rulings adverse to him 

in those matters (as well as makes “false claims” about the defendants’ intentions and 

District Court orders). 

Brown also contends that the District Judge is biased against him because of his 

appellate success2and because the District Judge was removed from a previous case after 

Brown filed a mandamus petition seeking his recusal. He also states that the District and 

Magistrate Judges dislike him and others who incur “three strikes” under the Prisoner 

Litigation Reform Act (“PLRA”). He also mentions, but does not specify, a surreptitious 

communication to the defendants by the District Judge. 

Upon review, we deny Brown’s petition. Mandamus is an extraordinary remedy. 

See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). To obtain mandamus relief, a 

 

2 Before Brown’s case was transferred from the United States District Court for the 

Western District of Pennsylvania to the United States District Court for the Eastern 

District, we vacated an order denying him in forma pauperis status in his District Court 

action. See Brown v. DiGuglielmo, 486 F. App’x 299, 302-03 (3d Cir. 2012) (per 

curiam). 
3

petitioner must show that “(1) no other adequate means exist to attain the relief he 

desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the 

writ is appropriate under the circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190 

(2010) (per curiam) (internal quotation marks and citation omitted). Mandamus is not a 

substitute for appeal. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004) 

(citations omitted); Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). 

First, to the extent that Brown seeks mandamus relief related to any refusal to 

recuse under 28 U.S.C. § 144, mandamus relief is not available because Brown may still 

take an appeal from that order after final judgment is entered in his District Court case. 

See In re Sch. Asbestos Litig., 977 F.2d 764, 774-76 (3d Cir. 1992). To the extent that 

Brown argues that recusal is proper under 28 U.S.C. § 455 on the basis that the 

impartiality of the judges presiding over his case might reasonably be questioned, we 

may consider the issue on mandamus. See In re Kensington Int’l Ltd., 353 F.3d at 219-

20; Alexander v. Primerica Holdings, 10 F.3d 155, 163 (3d Cir. 1993). To determine 

whether the extraordinary writ should issue, we review the 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, that judge must recuse under § 455(a). See id. at 302.

Given the facts of this case, neither the District Judge nor the Magistrate Judge 

must recuse. Brown’s primary basis for recusal, his dissatisfaction with District Court 
4

rulings, does not require recusal.3 See SecuraComm Consulting, Inc. v. Securacom Inc., 

224 F.3d 273, 278 (3d Cir. 2000). He also takes issue with characterizations of his efforts 

and evidence, but any purported misinterpretations or misstatements were permissible 

opinions formed by the District Judge in the course of judicial proceedings. See Liteky v. 

United States, 510 U.S. 540, 555 (1994). They were relatively neutral remarks and 

statements which do not suggest “deep-seated favoritism or antagonism.” Id. To the 

extent that criticism was explicit or implied, even critical, disapproving or hostile 

comments do not provide a basis for recusal in this case. See id. 

Also, the District Court Judge is not required to recuse merely because he presided 

over a prior case involving Brown. See In re Corrugated Container Antitrust Litig., 614 

F.2d 958, 966 (5th Cir. 1980). Although Brown suggests that the District Judge was 

removed from an earlier case after Brown filed a mandamus petition in this Court, we 

never ordered recusal as a result of that petition. That petition was dismissed for failure 

to prosecute. See In re Alton D. Brown, C.A. No. 08-1350 (order entered Mar. 4, 2008). 

The District Court case was coincidentally randomly reassigned to another judge 

subsequent to the dismissal of Brown’s appeal. See Brown v. DiGuglielmo, E.D. Pa. 

Civ. No. 07-cv-03771 (order entered Jun. 2, 2008). 

 

3

To the extent his arguments about ignored claims and motions include claims of 

temporary or other delay, we see no undue delay that could be considered a failure to 

exercise jurisdiction such that a writ of mandamus would be appropriate. See Madden, 

102 F.3d at 79. 
5

Furthermore, 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). For 

instance, Brown’s arguments regarding bias on the basis of his appellate victory in 

proceedings involving a judge in a different district and bias because of Brown’s status as 

a “three-striker” under the PLRA are too speculative of claims to require recusal. 

Likewise, his mention of a “surreptitious communication” is unsupported in the record. 

For these reasons, the District Judge did not err in denying Brown’s motion and 

declining to recuse from hearing Brown’s case.4 Brown’s petition for a writ of 

mandamus is denied. His motion to stay the District Court proceedings pending our 

decision is denied as moot. 

 

4 As the District Judge noted, in reliance on In re Kensington Int’l Ltd., 353 F.3d at 223 

n.12, he was declining to rule on the recusal motion in relation to the Magistrate Judge 

because there was no reason why the Magistrate Judge could not consider the matter 

himself. In affirming the District Court’s decision, we note further that Brown presented 

no reason to question the Magistrate Judge’s impartiality either. See Erie Telecomms. v. 

City of Erie, 853 F.2d 1084, 1089 (3d Cir. 1988) (holding that we may affirm on an 

alternative basis supported by the record).