In re: Alan Pitt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999183727-2]; denying Motion for writ of mandamus (FRAP 21) [999169275-2] Originating case number: 5:12-cv-00343-D,5:13-cv-00116-D Copies to all parties and the district court/agency. [999224530]. Mailed to: Alan Pitts. [13-1993]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1993

In
Re:
ALAN
PITTS;
SENECA
NICHOLSON,
Nicholson-Pitts; DERYL VON WILLIAMS,

a/k/a

Seneca

Petitioners.

On Petition for Writ of Mandamus and Writ of Prohibition.
(5:12-cv-00343-D; 5:13-cv-00116-D)

Submitted:

October 7, 2013

Before WILKINSON and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

October 23, 2013

Judges,

and

HAMILTON,

Petition denied by unpublished per curiam opinion.

Alan Pitts, Seneca Nicholson, Deryl Von Williams, Petitioners
Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alan Pitts, Seneca Nicholson, and Deryl Von Williams
(“Petitioners”) petition for a writ of mandamus or a writ of
prohibition,
dismissal

complaining

of

their

of

2012

error
civil

in

the

action

district

and

management in their 2013 civil action.

court’s

improper

case

For the reasons that

follow, we deny the petition.
In

2012,

Petitioners

filed

a

civil

action

in

the

district court, raising claims under the Voting Rights Act of
1965

(“VRA”),

42

U.S.C.

§§ 1971,

1973,

1973c

(2006),

and

42 U.S.C. §§ 1983 and 1985 (2006) regarding municipal elections
in Henderson, North Carolina.

Petitioners claimed in the action

that Defendants failed to pre-clear certain voting changes, in
violation

of

section

five

of

the

VRA,

and

three-judge court preside over the case.

requested

that

a

Several Defendants

moved to dismiss the complaint, and, in December 2012, a single
judge in the district court determined that Petitioners had not
obtained proper service of process over the moving Defendants.
The judge also determined that the remaining Defendants sued had
not been served within 120 days of the filing of the complaint.
Accordingly, the judge granted the motions to dismiss, dismissed
the complaint against the moving Defendants without prejudice
for lack of jurisdiction, and dismissed the complaint against
the Defendants who had not been served without prejudice for
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lack of jurisdiction.

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Because the judge determined that the

district court lacked jurisdiction in the case, the complaint
was not referred to a three-judge court for adjudication.
Petitioners
rulings.

Instead,

request

for

2013.

Several

did

not

appeal

Petitioners

adjudication

by

Defendants

a

the

refiled

district

their

three-judge

moved

to

court’s

complaint

court

dismiss

in

the

and

February

complaint.

That motion is pending in the district court.
In
prohibition,
court’s

their

petition

Petitioners

dismissal

of

for

complain

the

2012

a

writ

of

of

error

in

complaint

and

mandamus
the

or

district

“improper

case

management” in the 2013 action and request that we issue a writ
of

mandamus

or

prohibition

directing

the

district

court

to

convene a three-judge court, “reconsider the dismissal of” the
2012

complaint,

action.

and

“validate

service

of

process

in”

that

Petitioners request further that we stay proceedings in

the district court pending our consideration of their petition.
A

writ

of

mandamus

and

a

writ

of

prohibition

are

drastic remedies to be used only in extraordinary circumstances.
Kerr v. U. S. Dist. Court, 426 U.S. 394, 402 (1976) (writ of
mandamus); In re Vargas, 723 F.2d 1461, 1468 (10th Cir. 1983)
(writ of prohibition).

The writs traditionally have been used

in the federal courts “to confine an inferior court to a lawful
exercise

of

its

prescribed

jurisdiction
3

or

to

compel

it

to

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exercise

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its

authority

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when

it

is

its

duty

to

do

so.”

United States v. Moussaoui, 333 F.3d 509, 516 (4th Cir. 2003)
(internal

quotation

marks

omitted)

(addressing

a

writ

of

mandamus); In re Missouri, 664 F.2d 178, 180 (8th Cir. 1981)
(“A writ

of

prohibition

affords

an

expeditious

and

effective

means of confining an inferior court to a lawful exercise of its
prescribed jurisdiction or compelling a court to exercise its
authority.”

(internal

quotation

marks

omitted)).

To

obtain

relief, the petitioner “bears the burden of showing that his
right

to

issuance

Moussaoui,

333

of

F.3d

the
at

writ

517

is

clear

(internal

and

indisputable,”

quotation

marks

and

alteration omitted), and that he has “no other adequate means to
attain the relief he desires.”
Inc., 449 U.S. 33, 35 (1980).

Allied Chem. Corp. v. Daiflon,
Neither mandamus nor prohibition

may be used as a substitute for appeal.

In re Lockheed Martin

Corp., 503 F.3d 351, 353 (4th Cir. 2007); Vargas, 723 F.2d at
1468.
Petitioners are not entitled to the issuance of a writ
of

mandamus

or

a

writ

of

prohibition.

The

writs

are

not

substitutes for an appeal, and Petitioners could have obtained
relief

for

any

reversible

error

in

the

district

court’s

dismissal of their 2012 complaint by appealing that dismissal to
this court.

Petitioners, however, did not do so.

Further,

Petitioners do not point to any evidence or authority supporting
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the conclusion that they have a clear right to relief in the
form of an order from this court directing the district court to
convene

a

three-judge

court,

reconsider

its

dismissal, *

“validate” service of process in the 2012 action.
to

the

2013

action,

Petitioners

fail

to

or

With respect

identify

the

case

management improprieties underlying their request for mandamus
or

prohibition

relief

and

thus

fail

to

establish

that

their

right to such relief is clear and indisputable.
Accordingly,

although

we

grant

leave

to

proceed

in

forma pauperis, we deny the petition for a writ of mandamus or a
writ of prohibition.

We also deny as moot Petitioners’ motion

seeking a stay of the district court’s proceedings pending our
consideration of the petition.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
PETITION DENIED

*

Moreover, we observe that, to the extent Petitioners may
be entitled to relief from the district court’s 2012 dismissal
decision under the parameters of Fed. R. Civ. P. 60(b) (listing
six categories of reasons for obtaining relief from a final
judgment, order, or proceeding), they may file a motion to that
effect in the district court and appeal any adverse decision to
this court.

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