Gary Williams v. Virginia Supreme Court

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cv-00132-HEH Copies to all parties and the district court/agency. [998739168]. Mailed to: Gary Williams. [11-6787]

Appeal: 11-6787

Document: 16

Date Filed: 12/08/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6787

GARY BUTERRA WILLIAMS,
Petitioner – Appellant,
v.
VIRGINIA SUPREME COURT,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:11-cv-00132-HEH)

Submitted:

November 23, 2011

Decided:

December 8, 2011

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gary Buterra Williams, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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Document: 16

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PER CURIAM:
Gary Buterra Williams filed a petition for a writ of
mandamus in the district court seeking an order compelling the
state court in which he was being prosecuted to act on his
claims of federal constitutional violations.

The district court

dismissed his petition as it found Williams had sustained three
actions

that

failure

to

were

dismissed

state

“three-striker.”

a

as

claim,

thus

frivolous,
finding

malicious,

that

Williams

or

for

was

a

Although we conclude that the district court

erred in so finding, we affirm the district court’s order on an
alternative ground.
Under

the

Prison

Litigation

Reform

Act

(“PLRA”),

a

prisoner who has had three or more actions or appeals dismissed
as frivolous, malicious, or for failure to state a claim upon
which relief may be granted, may not proceed without prepayment
of fees unless he is under “imminent danger of serious physical
injury.”

28 U.S.C. § 1915(g) (2006).

However, dismissal of an

action without prejudice for failure to state a claim does not
count as a “strike” under the PLRA.

McLean v. United States,

566 F.3d 391, 396-97 (4th Cir. 2009).
Here, the district court relied on three 42 U.S.C.
§ 1983 (2006) suits instituted by Williams in finding that he
was a “three-striker” — Williams v. Vliet, 3:05-cv-621 (E.D. Va.
June

8,

2006),

Williams

v.

Cavedo,
2

3:05-cv-842

(E.D.

Va.

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Feb. 23, 2006), and Williams v. City of Richmond, 3:04-cv-747
(E.D.

Va.

Aug.

17,

2005).

City

of

Richmond,

however,

was

dismissed without prejudice for failure to state a claim for
relief and, therefore, cannot be relied upon in finding Williams
a “three-striker.”

Moreover, while Williams has had many other

cases dismissed by the district court and other district courts,
our review of these cases has failed to yield another qualifying
dismissal.
We therefore conclude that the district court erred in
finding
PLRA.

that

Williams

had

sustained

three

strikes

under

the

Nonetheless, we affirm the district court’s order on an

alternative ground.
Mandamus

is

a

drastic

extraordinary circumstances.
394, 402 (1976).

to

be

used

only

in

Kerr v. U.S. Dist. Court, 426 U.S.

“Courts are extremely reluctant to grant a

writ of mandamus.”
1987).

remedy

In re Beard, 811 F.2d 818, 827 (4th Cir.

To obtain mandamus relief, a petitioner must show that:

(1) he has a clear and indisputable right to the
relief sought; (2) the responding party has a clear
duty to do the specific act requested; (3) the act
requested is an official act or duty; (4) there are no
other adequate means to attain the relief he desires;
and (5) the issuance of the writ will effect right and
justice in the circumstances.
In

re

Braxton,

258

F.3d

250,

261

(4th

quotation marks and citation omitted).

3

Cir.

2001)

(internal

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In addition, federal courts do not have jurisdiction
to grant mandamus relief against state officials, see Gurley v.
Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th
Cir. 1969), or to review final state court orders.
of

Columbia

(1983).

Court

of

Appeals

v.

Feldman,

460

See District

U.S.

462,

482

As Williams sought an order compelling a state court to

act, he was not entitled to the relief he sought in the district
court.
We

therefore

affirm

the

dismissing Williams’ petition.

district

court’s

order

We dispense 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

4