*A MENDED October 18, 2010

CLD
- 00 4 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 0

- 3507

___________ In re : KELLEY NORMAN JOSEPH MALA , Petitioner

____________________________________ Petitio n for Writ of Mandamus from the District Court of the Virgin Islands (Related to D.V.I. Civ. No. 06

- cv
- 00120 )

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

October 7, 2010
Before: RENDELL, FUENTES , and SMITH C ircuit Judges

Opinion filed : October 22, 2010

_________ OPINION OF THE COURT

_________ PER CURIAM
P etitioner Kelley Norman Joseph Mala, proceeding pro se, seeks a writ of mandamus compelling Judge Juan R. Sanchez to recuse himself fro m future proceedings

. For the reasons that follow, we will deny the petition. Mala filed suit against the defendants in the District Co urt in July 2006. The case

was originally assigned to Chief Judge Curtis Gomez, who presided until reassigning the

matt er to Judge Sanchez in May 2010. After a June 2010 status conference, the courtallowed the parties to withdraw certain motions , denied the defendant’s motion for

summary judgment without prejudice to later refi ling , and reopened discovery

. On June 24, 2 010, Mala filed a motion under 28 U.S.C. § 455(a) and (b), seeking Judge Sanchez’s
recusal. Mala claimed Judge Sanchez’s case management decisions were evidence that
he held a “clearl y demonstrated bias” towards Mala

. The District Court has not yet ruled
on the recusal motion. In August 2010, Mala filed a petition for a writ of mandamus , repeating his claim that Judge Sanchez is biased against him a nd should be compelled to

recuse
. Mala has also filed a motion “requesting an immediate protective order a gainst Judge Sanchez.” A mandamus petition is a proper means of challenging a district judge’s refusal to recuse pursuant to 28 U.S.C. § 455. In re Kensington Int’l Ltd. , 368 F.3d 289, 300

- 01 (3d Cir. 2004)

. However, m andamus 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 nd the petitioner must demonstrate that he has “no other adequate means” to obtain the relief
desired and a “clear and indi sputable” right to issuance of the writ. Madden v. Myers , 102 F.3d 74, 79 (3d Cir. 1996). As such, we have recognized that it would not be appropriate to issue a writ of mandamus compelling the disqualification of a judge if a motion for recusal is pendi ng in the district court. See In re Kensington Int’l Ltd. , 353 F.3d 211, 224 (3d Cir. 2003). Because Judge Sanchez has not yet ruled on the motion for recusal, we conclude that Mala has not yet demonstrated that mandamus relief is
warranted.We recogniz e that over three months have elapsed since Mala filed his motion for

recusal, and that in the meantime, Judge Sanchez continues to make rulings in Mala’s

case. However, we cannot conclude that the overall delay in this matter rises to the level of a denial of due process

. See Madden , 102 F.3d at 79 ( a n appellate court “may issue a writ of mandamus on the ground that undue delay is tantamount to a failure to exercise jurisdiction ”)

. We are confident that the District Court will ente r an order in due course. Accordingly, the petition is denied

. * Mala’s motion requesting an immediate protective order against Judge Sanchez is denied.