in Re: Toshisada Onishi; Teruko Onishi; D.a.o v. Myers, 102 F.3d 74, 79 3d Cir. 1996 . D.A.O.’s behalf as D.A.O.’s father. However,…

ALD-122-E NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1589
___________
IN RE: TOSHISADA ONISHI; TERUKO ONISHI; D.A.O.,
Petitioners
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to D.N.J. Civ. No. 2:20-cv-13001)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
April 13, 2022
Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed: April 21, 2022)
_________
OPINION*
_________
PER CURIAM
Toshisada Onishi and Teruko Onishi have filed a petition for a writ of mandamus
requesting that we direct Magistrate Judge Edward S. Kiel to take various actions related
to a case that they filed in the United States District Court for the District of New Jersey.1
or the following reasons, we will deny in part and dismiss in part the petition.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1 The petitioners also seek mandamus relief on behalf of Toshisada Onishi’s minor child,
D.A.O; D.A.O. is listed as a petitioner and Toshisada Onishi signed the petition on

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2
In 2020, Toshisada Onishi and Teruko Onishi filed a complaint in the United
States District Court for the District of New Jersey raising, in part, claims pertaining to a
decision by an Indiana state court judge, David C. Chapleau, to award custody of
Toshisada Onishi’s minor child to his former spouse, Rachel Ellen House. The District
Court granted the defendants’ motion to dismiss for improper venue and for lack of
personal jurisdiction. Following that decision, the plaintiffs moved for reconsideration,
and repeatedly sought Magistrate Judge Kiel’s recusal, as well as the arrest and
prosecution of Judge Chapleau and House. The District Court denied those motions.
The mandamus petition asks us to direct Magistrate Judge Kiel to “arrest and
prosecute” Judge Chapleau and House for a violation of 18 U.S.C. § 242; to recuse
himself from further participation in the District Court case; to declare that the petitioners
are victims under the Crime Victims’ Rights Act (CVRA); and to rule on a motion to
appoint a guardian ad litem, see ECF 137.
Mandamus relief is clearly not warranted here. A writ of mandamus is a drastic
remedy available only in extraordinary circumstances. See In re Diet Drugs Prods. Liab.
Litig., 418 F.3d 372, 378 (3d Cir. 2005). A petitioner seeking the writ “must have no
other adequate means to obtain the desired relief, and must show that the right to issuance
is clear and indisputable.” Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996).
D.A.O.’s behalf as D.A.O.’s father. However, neither Toshisada Onishi nor Teruko
Onishi (D.A.O.’s grandmother), non- lawyers who are proceeding pro se, can represent
the interests of D.A.O. See Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d
876, 882 (3d Cir. 1991). Accordingly, we will dismiss the request for relief on D.A.O.’s
behalf.

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3
To the extent that the petitioners seek to have Magistrate Judge Kiel facilitate the
arrest of Judge Chapleau and House, there is no clear and indisputable right to require the
government to initiate criminal proceedings. Linda R.S. v. Roland D., 410 U.S. 614, 619
(1973); cf. Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir.
1973) (affirming dismissal of a complaint in mandamus to compel the United States
Attorney to investigate, arrest, and prosecute state officials for committing federal
offenses). In addition, the petitioners’ vague reference to “an apparent conflict of
interest” does not require the recusal of Magistrate Judge Kiel.2 See In re United States,
666 F.2d 690, 694 (1st Cir. 1981) (explaining that recusal is not required when it is based
on “unsupported, irrational, or highly tenuous speculation”). In addition, we will not
exercise our mandamus authority to declare that the petitioners are victims under the
CVRA. Among other reasons, relief under that Act can be pursued in the federal courts
in Indiana, where the purported crimes occurred. See 18 U.S.C. § 3771(d)(3) (providing
that rights under the CVRA may only be asserted in district court hosting relevant
criminal prosecution or, “if no prosecution is underway, in the district court in the district
in which the crime occurred”). In any event, it does not appear that the petitioners have
any viable CVRA action to file anywhere. The petitioners’ request that we direct the
District Court to rule on their motion to appoint a guardian ad litem is moot, as that
2 Toshisada Onishi’s “Motion for Rule to Show Cause” (Doc. 13), in which he asks that
we direct Magistrate Judge Kiel to “submit his reasonable explanation as to why this
Honorable Court should not mandate the District Court to vacate the reassignment” of the
underlying case, is denied.

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4
motion was administratively terminated by order entered September 2, 2021.3 See ECF
270.
For these reasons, we deny in part and dismiss in part the Petitioners’ petition for a
writ of mandamus.
3 We are also asked to direct Magistrate Judge Kiel to rule on a motion seeking the arrest
and prosecution of Judge Chapleau and House and to vacate orders that denied various
motions. Mandamus relief is not warranted for these requests. The petitioners do not
identify the still-pending motion for arrest and prosecution, and to the extent that such a
motion exists and requires adjudication, we are confident that the District Court will rule
in a timely manner. See Madden, 102 F.3d at 79 (stating that a writ of mandamus may
issue where a District Court’s “undue delay is tantamount to a failure to exercise
jurisdiction”). Moreover, mandamus may not be used as a substitute for appeal. See In
re Briscoe, 448 F.3d 201, 212 (3d Cir. 2006).

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