in Re: Arnold Reeves v. Peil, 759 F.2d 312, 314 3d Cir. 1985 . Determining whether an extraordinary…

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DLD-318 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3408
___________
IN RE: ARNOLD REEVES
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to Civ. No. 09-cv-00372)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
September 17, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: October 15, 2009)
_________
OPINION
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PER CURIAM
Arnold Reeves has filed a petition for a writ of mandamus directing the District
Court to grant him relief. For the reasons that follow, we will deny the petition.
On January 28, 2009, Reeves filed a complaint in which he alleged that prison
officials wrongly assigned him a public safety factor of “greatest severity” when
calculating his security classification. On May 8, 2009, the District Court dismissed the

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Section 455(a) provides that a judge “shall disqualify himself in any proceeding in1
which his impartiality might reasonably be questioned.”
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complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. After
Reeves filed a motion for reconsideration, a motion for summary judgment, and a motion
for a default judgment, the District Court reopened the matter to address those motions.
On August 19th, Reeves filed this mandamus petition.
A writ of mandamus should be issued only in extraordinary circumstances. See
Sporck v. Peil, 759 F.2d 312, 314 (3d Cir. 1985). Determining whether an extraordinary
circumstance exists requires a two-part inquiry. First, it must be established that there is
no alternative remedy or other adequate means of relief. Second, a petitioner must
demonstrate a clear and indisputable right to the relief sought. Kerr v. United States
District Court, 426 U.S. 394, 403 (1976). A writ is not a substitute for an appeal; only if a
direct appeal is unavailable will the court determine whether a writ of mandamus will
issue. See In Re Ford Motor Co., 110 F.3d 954, 957 (3d Cir. 1997).
Because Reeves will have the opportunity to appeal any final order of the District
Court, he is not entitled to an order compelling the District Court to grant him relief.
While Reeve may use his mandamus petition to challenge delay by the District Court,
there has been no delay in this case that would warrant mandamus relief.
Reeves also requests the recusal of the District Court Judge. While mandamus is
available to review a District Court’s refusal to recuse pursuant to 28 U.S.C. § 455(a),1

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Section 1915A(a) provides that “[t]he court shall review, before docketing, if feasible2
or, in any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.”
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see Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 1993), Reeves did
not move for recusal in the District Court. Moreover, a litigant’s displeasure with the
District Court’s legal rulings is not an adequate basis for recusal. Securacomm
Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000).
Reeves also requests that criminal charges be filed against the District Court Clerk.
However, there is no federal right to require the government to initiate criminal
proceedings. Linda R.S. v. Roland D., 410 U.S. 614, 619 (1973); U.S. v. Berrigan, 482
F.2d 171, 173-74 (3d Cir. 1973). Moreover, the Clerk had no duty to serve the complaint
until the District Court screened it under 28 U.S.C. § 1915A(a).2
For the above reasons, the petition will be denied.

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