DLD-076 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-4193 ___________

IN RE: WILMER GAY, Petitioner ____________________________________

On a Petition for Writ of Mandamus from the Eastern District Court of the Pennsylvania (Related to E.D. Pa. Civ. No. 11-cv-04194) ____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P. December 22, 2011

Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion filed: January 5, 2012) _________________

OPINION _________________

PER CURIAM

Wilmer Gay has filed a petition for a writ of mandamus in which he asks us to “set

aside” an order, issued by the Chief Judge of the United States District Court for the

Eastern District of Pennsylvania, which reassigned his civil rights action to Judge Mary

A. McLaughlin from Judge Thomas N. O’Neill. For the following reasons, we will deny

the petition.

In June 2011, Gay filed a civil rights action and an application to proceed in forma pauperis (“IFP”) in the United States District Court for the Central District of California.

The California District Court immediately transferred the matter to the Eastern District of

Pennsylvania, where, it concluded, a majority of the alleged events occurred. In the

Eastern District, the case was assigned to Judge O’Neill, who ordered that Gay’s IFP

application be denied because he had sufficient assets to pay the full filing fee. Gay filed

a motion for reconsideration and for “disqualification” of Judge O’Neill. Judge O’Neill

“ask[ed] the Chief Judge to assign another Judge to this matter.” Consequently, by order

entered July 22, 2011, the Chief Judge reassigned the case to Judge McLaughlin.1 Gay

filed a mandamus petition, asking this Court to “set aside” the order reassigning the case

because it is “devoid of a signature of [the] Chief Judge . . . to substantiate its validity as

. . . mandated by Local Rules of Civil Procedure, Rule 40.3.1.”

A writ of mandamus is an extraordinary remedy. In re Diet Drugs Prods. Liab.

Litig.,

, 378 (3d Cir. 2005). To justify its use, a petitioner must demonstrate

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

1 Thereafter, Judge McLaughlin denied Gay’s motion for reconsideration, stating that Gay could reinstate the case by remitting the filing fee within 30 days. Rather than pay, Gay filed another motion for reconsideration. Judge McLaughlin denied the motion by order entered October 13, 2011. Gay did not file a notice of appeal. To the extent that Gay challenges the denial of IFP status, we conclude that mandamus relief is not warranted. See In re Nwanze,

(3d Cir. 2001) (stating that a mandamus petitioner must show that he has an indisputable right to the writ and that there exists no other adequate remedy); Abdul-Akbar v. McKelvie,

(3d Cir. 2001) (holding that an “order denying leave to proceed I.F.P. is a final, collateral order appealable under

.”). 2 the circumstances.” Hollingsworth v. Perry,

(2010) (per curiam)

(quotation marks and citation omitted). No such showing has been made in this case.

While a mandamus petition is a proper means of challenging a district judge’s

refusal to recuse himself pursuant to

, see In re Sch. Asbestos Litig.,

(3d Cir. 1992), Gay seeks to challenge an order effectively providing

the relief that he sought, namely, the assignment of this case to a different judge.

Nevertheless, Gay complains that the order reassigning the case was not signed by the

Chief Judge, citing as support Local Rule of Civil Procedure 40.3.1(2). But that Rule

pertains in relevant part to “reassignment of substantial numbers of cases” and does not

refer to signatures required on court orders. Local Rule 5.1.2(13), however, provides that

“[a]ny order filed electronically without the original signature of a judge has the same

force and effect as if the judge had affixed the judge’s signature to a paper copy of the

order and it had been entered on the docket in paper copy filed in the traditional manner.”

Here, although the order reassigning the case did not contain the Chief Judge’s original

signature above his typed name, it did include the Clerk’s electronic signature, attesting

to the validity of the order. Under these circumstances, we conclude that there is no basis

upon which to “set aside” the reassignment order.

Accordingly, the petition for a writ of mandamus is denied.

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