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 Defendants—the Clerk and Chief Deputy Clerk of this court1—to file his motion 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."2 Id. at 1243. We concluded that because the Clerk was "being asked to perform a judicial function 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