                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2008

In Re: Kelley Troy Cooley
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4241




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Recommended Citation
"In Re: Kelley Troy Cooley " (2008). 2008 Decisions. Paper 119.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/119


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HLD-13 (November 2008)                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4241
                                      ___________

                           IN RE: KELLEY TROY COOLEY,
                                                Petitioner

                       ___________________________________

                      On Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                   (Related to D.C. Civil Action No. 1-07-cv-00208)
                      ____________________________________

                       Submitted Under Rule 21, Fed R. App. P.
                                 November 26, 2008
           Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

                               (Filed: December 11, 2008)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM.

             Kelley Troy Cooley brought an action in the United States District Court for

the Western District of Pennsylvania under the Civil Rights Act of 1871, 42 U.S.C. §

1983, against numerous defendants, including the County of Erie, Pennsylvania. Cooley

contended in his complaint that his constitutional rights were violated on March 7, 2007,

when, both during and after his criminal sentencing before Judge Cunningham in the

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Court of Common Pleas of Erie County, sheriffs used excessive force while removing

him from the courthouse. Cooley also alleged that county sheriffs used racial slurs

against him and that prison officials denied him medical treatment.

               Cooley filed numerous pre-trial motions in the case. A magistrate judge,

who is presiding over pretrial matters, denied several of Cooley’s motions. The motions

included a motion to appoint trial counsel, a motion for leave to amend his complaint, and

several discovery-related motions. Following the magistrate judge’s orders denying the

motions, Cooley sought review with the district judge. The district judge, upon review of

the appeal, issued a June 26, 2008 Opinion and Order of the Court affirming the

magistrate judge’s prior determinations. He also denied motions filed by Cooley seeking

to recuse the magistrate judge and to obtain a default judgment against defendants for

their alleged failure to produce certain discovery.1

               A writ of mandamus is an extraordinary remedy. See Kerr v. U.S. Dist Ct.,

426 U.S. 394, 402 (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




   1
     In a matter docketed at C.A. No. 08-3184, we address Cooley’s interlocutory appeal
of the district judge’s order.

                                                2
Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted).

              Cooley, in filing his petition for writ of mandamus, seeks in essence to

obtain interlocutory review of the district judge’s June 26, 2008 Order denying Cooley’s

various pretrial non-dispositive motions. Mandamus is not a substitute for appeal,

however. See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004); Madden v. Myers,

102 F.3d 74, 79 (3d Cir. 1996). Cooley has not demonstrated that he is without other

adequate means for relief. In re Patenaude, 210 F.3d at 141. At a later time, on appeal

(if necessary), Cooley may renew his arguments about the district court’s rulings. Indeed,

mandamus is “available only when necessary to prevent grave injustice.” Bogosian v.

Gulf Oil Corp., 738 F.2d 587, 591 (3d Cir. 1984). We perceive no “grave injustice” here.

              The only issue in Cooley’s Petition for Writ of Mandamus over which this

Court might provide mandamus review is the District Court’s denial of Cooley’s motion

under 28 U.S.C. § 455 to recuse the magistrate judge. See In re Sch. Asbestos Litig., 977

F.2d 764, 776-78 (3d Cir. 1992). Cooley’s motion for recusal and belief that the

magistrate judge showed bias are based primarily upon the magistrate judge’s rulings on

various motions that he filed. As the District Court correctly noted, judicial rulings rarely

constitute a basis for recusal. Liteky v. United States, 510 U.S. 540, 555 (1994). We are

not persuaded that the magistrate judge’s rulings demonstrate any kind of bias, let alone

one justifying mandamus relief.

              For the foregoing reasons, mandamus relief is not appropriate here. We



                                              3
will deny the petition. Petitioner’s motion to intervene and demand for stay are DENIED.




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