In Re: Martin J. Reilly, Petitioner, 998 F.2d 1010 (4th Cir. 1993)

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U.S. Court of Appeals for the Fourth Circuit - 998 F.2d 1010 (4th Cir. 1993)

Submitted: June 23, 1993. Decided: July 7, 1993


On Petition for Writ of Prohibition.

Martin J. Reilly, Petitioner Pro Se.

PETITION DENIED.

Before PHILLIPS, MURNAGHAN, and LUTTIG, Circuit Judges.

PER CURIAM:


OPINION

Martin J. Reilly petitions for a writ of prohibition compelling the district court to act on three postjudgment motions so that he may appeal the district court's order granting the Defendants' motions to dismiss his civil complaint. This Court recently dismissed Reilly's premature appeal of that dismissal order. Reilly v. Gray, No. 92-1692 (4th Cir. Feb. 12, 1993) (unpublished). Reilly also seeks reconsideration of a judicial complaint and the recusal of the district court judge assigned to his case.

Petitions for writs of prohibition or mandamus are rarely granted unless the petitioner can show a clear and indisputable right to relief and that there are no other means by which the petitioner could obtain the requested relief. In re Beard, 811 F.2d 818, 826 (4th Cir. 1987). Reilly's proper avenue of relief respecting the judicial complaint is to file a petition for review of the chief judge's order with the Judicial Council of the Fourth Circuit under Rule 5 of the Rules of the Judicial Council of the Fourth Circuit Governing Complaints of Judicial Misconduct and Disability. Further, a motion to recuse a federal judge is not granted when the alleged bias arises from the judge's participation in the matter under dispute. Id. at 827.

Because the civil action has not been pending without action for an unreasonable length of time, we deny Reilly's petition for a writ of prohibition. Our denial of the petition, however, is without prejudice to his right to refile if the district court does not act within a reasonable amount of time.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

PETITION DENIED