This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not be of material assistance in

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

August 2, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VERNELL McKNIGHT, JR., 

Plaintiff–Appellant, No. 06-1513

v. (Case No. 06-cv-01698-ZLW)

ELIZABETH A. SHUMAKER,

Officially/Individually; DOUGLAS E.

CRESSLER, Officially/Individually;

THE U.S. ATTORNEY FOR THE

DISTRICT OF DENVER,

COLORADO,

(D. Colo.)

Defendants–Appellees.

 

ORDER AND JUDGMENT

*

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

Plaintiff, a state prisoner proceeding pro se, appeals the district court’s

denial of his mandamus petition and subsequent motion for reconsideration and

recusal. In his petition, Plaintiff requested the district court to compel
 Defendant–Appellee U.S. Attorney for the District of Colorado is listed in 1

the complaint only as attorney for the two named Defendants. Plaintiff does not

appear to seek any independent relief from this Defendant. 

 By this language, Trackwell did not alter established precedent that clerks 2

are ministerial officers who may not assume judicial powers. See McNeil v.

Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991); Midwestern Devs., Inc. v. City of

Tulsa, OK, 319 F.2d 53, 53 (10th Cir. 1963). Rather, Trackwell simply held that

clerks acting in their official capacity as officers of a court—assisting the court in

its judicial functions by performing delegated tasks—should be treated as the

court itself in construing § 1361.

-2-

Defendants—the Clerk and Chief Deputy Clerk of this court —to file his motion 1

to recall the mandate in McKnight v. White, No. 89-5163 (10th Cir. May 23,

1990), a habeas appeal that this court resolved in 1990. Reasoning that it would

be inappropriate for a court to issue mandamus against the officers of a higher

court, the district court dismissed the complaint and denied Plaintiff’s motion for

reconsideration and recusal.

Our recent opinion in Trackwell v. United States Government, 472 F.3d

1242 (10th Cir. 2007), supports the court’s decision. In Trackwell, the plaintiff

sought mandamus relief in the district court against the Supreme Court and its

Clerk, alleging that the Clerk of the Court had improperly refused to file and

transmit to Justice Stephen Breyer an application that the plaintiff had submitted

challenging the constitutionality of the Iraq War. Considering both the language

of the statute and relevant policy concerns, we held that § 1361 “does not apply to

courts or to court clerks performing judicial functions.” Id. at 1243. We 2

concluded that because the Clerk was “being asked to perform a judicial function
-3-

delegated by the Supreme Court—the filing of an application”—the district court

lacked jurisdiction to consider the plaintiff’s request for §1361 mandamus relief. 

Id. at 1247. Thus, under Trackwell, the district court lacked jurisdiction over

Plaintiff’s request for § 1361 mandamus relief against officers of this court who

refused to file his motion to recall the mandate.

As to Petitioner’s allegation that the district court abused its discretion by

denying his request for recusal, this request was based on Petitioner’s assertion

that the court demonstrated bias by dismissing his complaint. However, “adverse

rulings are not in themselves grounds for recusal,” Glass v. Pfeffer, 849 F.2d

1261, 1268 (10th Cir. 1988), and Petitioner does not provide any other factual

allegations in support of his argument that the court was biased. We accordingly

conclude that the district court did not abuse its discretion by denying the motion

for recusal. 

Petitioner also seeks to recover the costs he incurred in filing this lawsuit,

pursuant to 28 U.S.C. § 2412. Because Petitioner is not the prevailing party in

the action, we need not consider this request. We also DISMISS as moot

Petitioner’s July 26, 2007 motion for summary disposition and determination.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge