In re: Huertas

274 F. App'x 118
CourtCourt of Appeals for the Third Circuit
DecidedApril 2, 2008
DocketNo. 08-1400
StatusPublished
Cited by2 cases

This text of 274 F. App'x 118 (In re: Huertas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re: Huertas, 274 F. App'x 118 (3d Cir. 2008).

Opinion

OPINION OF THE COURT

PER CURIAM.

Hector L. Huertas filed a mandamus petition, complaining that the District Court improperly denied his applications to proceed informa pauperis (“ifp”) in two cases in the United States District Court for the District of New Jersey, Civil Nos. 08-cv-00416 & 08-cv-00417. He also included claims that the District Court Judge, Judge Bumb, was biased against him, and asked for her recusal in his current and future District Court cases. He also asked that we appoint pro bono counsel to represent him “solely for litigating Oral Arguments concerning all courtroom conferences scheduled by District Court Judges.”

The Clerk of Court issued an order, noting that it appeared we lacked authority to consider Huertas’s petition because the District Court cases he had cited had been decided by District Court order and because mandamus is not a substitute for an appeal. The Clerk invited Huertas to explain how his petition was not moot and under what authority we could consider his petition.

In response, Huertas filed a statement to explain that he misunderstood mandamus procedures and noted that he would file a notice of appeal relating to Civil Nos. 08-cv-00416 & 08-cv-00417. However, he argued that mandamus relief was still appropriate because the District Court judge had exceeded her authority or improperly declined to exercise it in two other District Court cases he had filed, Civil Nos. 03-ev-04025 & 06-cv-06161. To his statement, Huertas attached an amended petition for writ of mandamus.

In relation to Civil No. 03-cv-04025, Huertas argues that after he appealed the District Court’s order dismissing his action, and after we dismissed his appeal for lack of jurisdiction because a claim remained pending, the District Court kept his case closed. He worries that the case will not be brought to trial within the time set out in the District Court scheduling [120]*120order. He also contends that the order dismissing his case and another order denying his motions for default judgment were improper and entered to delay proceedings.

Huertas also claims that Judge Bumb should recuse from that case because of her bias against him as a “Hispanic and/or Pro Se litigant[ ].” Huertas also describes comments Judge Bumb made as “racial slurs,” such as her statement “hang tight” directed toward an African American defendant, and her response (to Huertas’s argument on a point of evidence) that “Claribel Garcia [a Camden County paralegal] has nothing to do with it!”.

In relation to Civil No. 06-cv-06161, Huertas states that the District Court denied him ifp status. He notes that he appealed from the decision, and includes the portion of our opinion granting ifp status.1 He then repeats the claim he made in his original mandamus petition, that the District Court improperly denied him ifp status in Civil Nos. 08-cv-00416 & 08-cv-00417. (Huertas also claims that Judge Bumb was inappropriately hoarding his cases so that she could deny his ifp applications and other judges could not rule on them.)

Finally, although Huertas does not list Civil No. 06-cv-04676 in the caption of his amended mandamus petition, he also complains that “the scheduling orders and the extenuating delays” in that case (as well as in Civil No. 03-cv-04025) violate Rule 16 of the Federal Rules of Civil Procedure.2

As relief, Huertas requests the recusal of Judge Bumb from “all current and future cases filed and litigated by the Petitioner” and an order “requiring the District Court to appoint pro bono counsel for the Pro Se Petitioner solely for litigating Oral Arguments concerning all courtroom conferences scheduled by District Court Judges.” He also seeks any other relief we deem proper.

We will deny Huertas’s mandamus petition. Mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (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).

In part, Huertas’s petition is moot. Recently (and not long after we dismissed the related appeal for lack of jurisdiction), the District Court set a date for status conference in Civil No. 03-cv-04025. The District Court will enter a final scheduling order at the conclusion of the conference, so Huertas need no longer worry whether the deadlines in an earlier scheduling order are met.

To the extent that Huertas otherwise complains of “scheduling orders and delays” in Civil No. 03-cv-04025, we remind him that how a district court controls its docket is committed to its sound discretion. See In re Fine Paper Antitrust Liti[121]*121gation, 685 F.2d 810, 817 (3d Cir.1982). Of course, an appellate court may issue a writ of mandamus when undue delay amounts to a failure to exercise jurisdiction and rises to the level of a due process violation, but we see no such undue delay here. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996),

Furthermore, Huertas may ultimately raise the issue of delay in an appeal, if he so chooses. Similarly, he can appeal the District Court order dismissing his claims and denying his motion for default judgment. Accordingly, Huertas cannot show that he has no other means of relief, so mandamus relief from these orders is not appropriate.3 See Cheney v. United States Dist. Court, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (noting that the person seeking a writ of mandamus must show that there is no other adequate means to attain the relief sought); Madden, 102 F.3d at 79.

In Civil No. 03-cv-04025, Huertas filed a “motion to disqualify” Judge Bumb pursuant to 28 U.S.C. §§ 144 & 455(a), and he presently seeks Judge Bumb’s recusal in all his current and future cases. We review a district court’s refusal to recuse under 28 U.S.C. § 455 for abuse of discretion. See In re Antar 71 F.3d 97, 101 (3d Cir.1995). If a reasonable person, with knowledge of all the facts, would reasonably question a judge’s impartiality, the judge must recuse under § 455(a).

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274 F. App'x 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-huertas-ca3-2008.