Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit

11-21-2006

In Re: Joseph Jarvis Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3974

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 06-3974 _____________

IN RE: JOSEPH JARVIS, Petitioner _____________________________

Petition for Writ of Mandamus from the United States District Court for the District of New Jersey (Related to D.N.J. Civil No. 04-cv-00055) ______________________________

Submitted Under Rule 21, Fed. R. App. Pro. October 5, 2006

Before: RENDELL, AMBRO and ROTH, Circuit Judges.

(Filed November 21, 2006) ___________________

OPINION OF THE COURT __________________

PER CURIAM

Joseph Jarvis petitions for a writ of mandamus requiring Magistrate Judge

Madeline C. Alreo of the United States District Court for the District of New Jersey to

recuse herself from the underlying action.

Jarvis alleges judicial misconduct based on the Magistrate Judge’s harsh

words towards Jarvis’s former attorney, failure to notify Jarvis of schedule changes in the

case, and unjustified rulings in favor of the opposing party. He also contends that the Judge is being influenced by a retired Federal District Judge who is the father of one of

the opposing party’s attorneys and associated with that attorney’s law firm. The

Magistrate Judge denied Jarvis’s motion for recusal on September 18, 2006.

We exercise jurisdiction under

(a) and review the

Magistrate Judge’s decision not to recuse for abuse of discretion. See In re Kensington

Int’l, Ltd.,

(3d Cir. 2004) (abuse of discretion standard applies

when the district court rules on a motion to recuse after a petition for writ of mandamus is

filed in the Court of Appeals). Under 28 U.S.C.§ 455(a), a Magistrate Judge must

“disqualify himself in any proceeding in which his impartiality might reasonably be

questioned.” Disqualification under § 455(a) is required if “a reasonable person, with

knowledge of all the facts, would conclude that the judge’s impartiality might reasonably

be questioned.” In re Kensington Int’l, 353 F.3d at 301. While actual bias need not be

shown, id. at 302, “a movant must supply some objective facts that support his position,

not mere speculation.” See U.S. v. Martorano,

(3d Cir. 1989).

Absent extraordinary circumstances, “‘beliefs or opinions which merit

recusal must involve an extrajudicial factor’” beyond what has occurred in the

proceedings. Selkridge v. United of Omaha Life Ins. Co.,

(3d Cir.

2004) (citation omitted). Petitioner has failed to allege any objective facts that could

support a finding that there were extrajudicial factors creating the appearance of

impartiality. His allegations regarding the Magistrate Judge’s ex parte contact with

opposing counsel’s father are mere speculation. See Martorano, 866 at 68. Likewise,

2 nothing about the Magistrate Judge’s alleged handling of motions, petitioner’s telephone

calls, or the court appearances of his former attorney is extreme enough to support a claim

of bias or partiality. See Securacomm Consulting, Inc. v. Securacom, Inc.,

(3d Cir. 2000). If petitioner disagrees with the Magistrate Judge’s rulings, he may

appeal them at the appropriate time. See In re Briscoe,

(3d. Cir. 2006)

(citations omitted).

For the foregoing reasons, the petition for a writ of mandamus will be

denied.

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