Steven Barnes v. Margaret Seymour

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-02616-SB. Copies to all parties and the district court/agency. [998542506] [10-6860]

Steven Barnes v. Margaret Seymour

Doc. 0

Case: 10-6860

Document: 16

Date Filed: 03/11/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-6860

STEVEN LOUIS BARNES, Petitioner ­ Appellant, v. MARGARET B. SEYMOUR, U.S. District Judge; THOMAS E. ROGERS, Magistrate Judge; PAIGE J. GOSSETT, Judge, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Sol Blatt, Jr., Senior District Judge. (8:09-cv-02616-SB)

Submitted:

February 22, 2011

Decided:

March 11, 2011

Before KING, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Steven Louis Barnes, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 10-6860

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Date Filed: 03/11/2011

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PER CURIAM: Steven Louis Barnes appeals the district court's order adopting the recommendation of the magistrate judge and

dismissing his petition for a writ of mandamus without prejudice and designating the dismissal as a "strike" for purposes of the Prison (2006). only Dist. in Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(b)

Mandamus relief is a drastic remedy and should be used extraordinary 426 circumstances. 394, 402 Kerr v. United States v.

Court, 333

U.S. 509,

(1976); (4th when Cir. the

United 2003).

States

Moussaoui, mandamus

F.3d is

516-17 only

Further, has a

relief

available

petitioner

clear right to the relief sought.

In re First Fed. Sav. & Loan We have reviewed the

Ass'n, 860 F.2d 135, 138 (4th Cir. 1988).

record and conclude that Barnes was not entitled to mandamus relief. Cir. See In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th (mandamus may not be used as a substitute for

2007)

appeal). However, as the district court dismissed the action without prejudice, it cannot serve as a predicate "strike" for purposes of the PLRA. 391, 396-97 (4th Cir. See McLean v. United States, 566 F.3d 2009). Accordingly, we affirm the

district court's dismissal of the action, but vacate and remand with instructions that the court amend the order to reflect that the dismissal is not a "strike" under the PLRA. 2 We dispense

Case: 10-6860

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Date Filed: 03/11/2011

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with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED

3