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BLD

- 284 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 1

- 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 Kell e y 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 th e 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 to ld, his pleadings , which raised claims of excessiv e 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 Sheri ffs Anthony Bowers, Charles
Bowers , Jay Wieczorek, Roger Gune sch, and David Stucke. In July 2008, Defendants Erie County and DiVecchio moved for summary judgment. The Magistrate Judge recommended that the court g rant the motion, and the court adopted that recommendation in March 2009. In February 2010, the remain ing defendants (hereinafter collectively referred to as “the Sheriff Defendants ”) moved for summary judgment. In August 2010, the Magistrate Judge recom mended that the court grant that motion in part and deny it in part, concluding that Cooley’s Eighth Am endment excessive force claims survived summary judgment as to six of the Sheriff D efendants

. The Sheriff Defe ndants filed “exceptions” to the Magistrate Judge’s report, and moved to supplement the record. The District Court granted the request to supple ment, and recommitted the m atter 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 repo rt and the supplemental report

. Cooley then moved for3

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 mand amus 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 thos e objections, as well as an o rder compelling Judge Cohill to recuse himself.
II. A writ of mandamus is a drastic remedy avail able 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 quotatio n m arks 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. Pr imerica 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 of4

that motion for abuse of discretion. See In re Kensington In t’ l Ltd. , 368 F.3d 289, 301 (3d Cir. 2004). Cooley has not established that mandamus relief is warranted here. First, h is claim that the District Court failed to consider his objections to the Magistrate Judge’s August 2010 report may be raised on app eal once a fi nal 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 favorit ism for the Respondent’s [sic]” is wholly
unsubstanti ated, and Cooley’s claim that Judge Cohill failed to consider the above

referenced objections t o 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 t he 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 t he District Court proceedings pending the resolution of this mandamus petition is denied.