2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-27-2011

In Re: Kelley Troy Cooley

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2705

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"In Re: Kelley Troy Cooley " (2011). 2011 Decisions. Paper 462.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/462
1

BLD-284 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2705

___________

IN RE: KELLEY TROY COOLEY,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the Western District of Pennsylvania

(Related to D.C. Civ. No. 1:07-cv-00208)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

September 8, 2011

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed September 27, 2011)

_________

OPINION

_________

PER CURIAM

Kelley Troy Cooley, a Pennsylvania state prisoner proceeding pro se, petitions this 

Court for a writ of mandamus (1) ordering the recusal of the presiding District Court 

Judge in his pending civil rights action, and (2) directing the District Court to address his 

objections to a Magistrate Judge’s report issued in that case. For the reasons that follow, 
2

we will deny the petition.

I.

In August 2007, Cooley filed a pro se complaint in the District Court pursuant to 

42 U.S.C. § 1983. He later amended his complaint in May 2008. All told, his pleadings, 

which raised claims of excessive force, among other claims, named ten defendants: Erie 

County, County Executive Mark DiVecchio, Erie County Sheriff Robert Merski, Sheriff 

Marty Davis, Lieutenant Paul Greiner, and Deputy Sheriffs Anthony Bowers, Charles 

Bowers, Jay Wieczorek, Roger Gunesch, and David Stucke.

In July 2008, Defendants Erie County and DiVecchio moved for summary 

judgment. The Magistrate Judge recommended that the court grant the motion, and the 

court adopted that recommendation in March 2009. In February 2010, the remaining 

defendants (hereinafter collectively referred to as “the Sheriff Defendants”) moved for 

summary judgment. In August 2010, the Magistrate Judge recommended that the court 

grant that motion in part and deny it in part, concluding that Cooley’s Eighth Amendment 

excessive force claims survived summary judgment as to six of the Sheriff Defendants. 

The Sheriff Defendants filed “exceptions” to the Magistrate Judge’s report, and moved to 

supplement the record. The District Court granted the request to supplement, and 

recommitted the matter to the Magistrate Judge.

In March 2011, the Magistrate Judge issued a supplemental report, echoing her 

recommendation from her original report. On April 29, 2011, the District Court entered 

an order adopting both the report and the supplemental report. Cooley then moved for 
3

reconsideration of that order, and requested that the presiding District Court Judge, the 

Honorable Maurice B. Cohill, Jr., recuse himself. While that motion was pending, 

Cooley filed the instant mandamus petition. On July 8, 2011, the District Court denied 

Cooley’s motion for reconsideration and request to recuse. The surviving claims from 

Cooley’s pleadings remain pending before the District Court.

In his mandamus petition, Cooley claims that the District Court never addressed 

objections he made to the Magistrate Judge’s August 2010 report. Cooley seeks an order 

directing the District Court to consider those objections, as well as an order compelling 

Judge Cohill to recuse himself.

II.

A writ of mandamus is a drastic remedy available only in extraordinary cases. See

In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). A petitioner 

seeking mandamus relief must show 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 the circumstances.” Hollingsworth v. Perry, 130 S. Ct. 

705, 710 (2010) (per curiam) (internal quotation marks and citation omitted). As we have 

previously explained, “[m]andamus is a proper means for this court to review a district 

court judge’s refusal to recuse from a case pursuant to 28 U.S.C. § 455(a), where the 

judge’s impartiality might reasonably be questioned.” Alexander v. Primerica Holdings, 

Inc., 10 F.3d 155, 163 (3d Cir. 1993). Where, as here, the mandamus petition is filed 

before the district court rules on the recusal motion, we review the subsequent denial of 
4

that motion for abuse of discretion. See In re Kensington Int’l Ltd., 368 F.3d 289, 301 

(3d Cir. 2004). 

Cooley has not established that mandamus relief is warranted here. First, his 

claim that the District Court failed to consider his objections to the Magistrate Judge’s 

August 2010 report may be raised on appeal once a final order has been issued in his

case. Second, Cooley has not established that Judge Cohill abused his discretion in 

refusing to recuse himself. Cooley’s allegation that Judge Cohill made “ex parte 

decisions which appears [sic] to be favoritism for the Respondent’s [sic]” is wholly 

unsubstantiated, and Cooley’s claim that Judge Cohill failed to consider the abovereferenced objections to the Magistrate Judge’s report, without more, is not a sufficient 

basis to warrant recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“Almost

invariably, [judicial rulings] are proper grounds for appeal, not for recusal.”). Simply 

put, Cooley has failed to establish that “a reasonable person, with knowledge of all the 

facts, would conclude that the judge’s impartiality might reasonably be questioned.” See

In re Kensington Int’l Ltd., 368 F.3d at 301 (reciting test for recusal under § 455(a)).

In light of the above, we will deny Cooley’s petition for a writ of mandamus. 

Cooley’s motion to stay the District Court proceedings pending the resolution of this

mandamus petition is denied.