In re: Kelley Norman Joseph Mala ( 2010 )

*AMENDED October 18, 2010
CLD-004 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3507
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In re: KELLEY NORMAN JOSEPH MALA,
Petitioner
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Petition for Writ of Mandamus from the
District Court of the Virgin Islands
(Related to D.V.I. Civ. No. 06-cv-00120)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
October 7, 2010
Before: RENDELL, FUENTES, and SMITH Circuit Judges
Opinion filed: October 22, 2010
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OPINION OF THE COURT
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PER CURIAM
Petitioner Kelley Norman Joseph Mala, proceeding pro se, seeks a writ of
mandamus compelling Judge Juan R. Sanchez to recuse himself from future proceedings.
For the reasons that follow, we will deny the petition.
Mala filed suit against the defendants in the District Court in July 2006. The case
was originally assigned to Chief Judge Curtis Gomez, who presided until reassigning the
matter to Judge Sanchez in May 2010. After a June 2010 status conference, the court
allowed the parties to withdraw certain motions, denied the defendant’s motion for
summary judgment without prejudice to later refiling, and reopened discovery. On June
24, 2010, 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 “clearly 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 and should be compelled to
recuse. Mala has also filed a motion “requesting an immediate protective order against
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, 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), and the
petitioner must demonstrate that he has “no other adequate means” to obtain the relief
desired and a “clear and indisputable” 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 pending 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 recognize 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 (an 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 enter an order in due course.
Accordingly, the petition is denied. *Mala’s motion requesting an immediate protective
order against Judge Sanchez is denied.