DLD-344                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 13-2384
                                       ___________

                        IN RE: THOMAS PAUL RICHARD, SR.,

                                                Petitioner
                       ____________________________________

                     On a Petition for Writ of Mandamus from the
          United States District Court for the Western District of Pennsylvania
                       (Related to D.C. Civil No. 2-07-cv-00016)
                      ____________________________________

                     Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    July 18, 2013

              Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                               (Opinion filed July 31, 2013)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Petitioner Thomas Richard, a state prisoner, filed a petition for a writ of

mandamus requesting that we 1) compel the Magistrate Judge to recuse himself and 2)

reverse the denial of his motion pursuant to Fed. R. Civ. P. 60(b).

       We will issue a writ of mandamus under 28 U.S.C. § 1651(a) only in

“extraordinary circumstances.” See Hahnemann Univ. Hosp. v. Edgar, 

, 461

(3d Cir. 1996). A petitioner seeking mandamus must show that (1) no other adequate
means exist to attain the desired relief, (2) his right to issuance of the writ is clear and

indisputable, and (3) the writ is appropriate under the circumstances of his case. Cheney

v. U.S. Dist. Ct., 

, 380-81 (2004); In re Pressman-Gutman Co., 

, 399 (3d Cir. 2006). “Given its drastic nature, a writ of mandamus should not be

issued where relief may be obtained through an ordinary appeal.” 

; see also 

(holding mandamus is not a substitute

for appeal). Even when these elements are met, the decision to issue a writ of mandamus

is “largely discretionary.” 

.

        The Magistrate Judge denied Richard’s 60(b) motion as moot. Denial of a motion

pursuant to Fed. R. Civ. P. 60(b) is a final, appealable order. See, e.g., Pridgen v.

Shannon, 

, 725 (3d Cir. 2004). Because an ordinary appeal is available, we

will deny the petition for mandamus to the extent it is an attempt to seek review of the

District Court’s order. See United States v. Higdon, 

, 245 (3d Cir. 2011)

(holding power for appellate courts to issue mandamus is limited to “exceptional cases

where the traditional bases for jurisdiction do not apply.”) (quoting In re Pasquariello, 

, 528 (3d Cir. 1994)).

       However, mandamus is an appropriate vehicle to challenge the denial of a motion

to recuse under 28 U.S.C. § 455. See In re Sch. Asbestos Litig., 

, 777-78

(3d Cir. 1992). Richard’s assertion of bias is solely on the basis that the Magistrate Judge

has ruled against him in the past. That is insufficient to establish that the Magistrate

Judge’s partiality might reasonably be questioned within the meaning of § 455. Liteky v.
                                               2
United States, 

, 555 (1994) (“[J]udicial rulings alone almost never constitute

a valid basis for a bias or partiality motion.”). Here, the record only shows that the

Magistrate Judge denied Richard’s petition for writ of habeas corpus five years ago, and

Richard has pointed to no extrajudicial source of bias. See United States v. Bertoli, 

, 1412 (3d Cir. 1994). We find no evidence in the record of a “deep seated or

high degree of favoritism or antagonism that would make fair judgment impossible.”

United States v. Wecht, 

, 213 (3d Cir. 2007) (citation and internal quotation

marks omitted).

       Accordingly, we will deny the petition for writ of mandamus.




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