UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6410
In Re: ROBERT CALVIN CRAIG, JR.,
Petitioner.
On Petition for Writ of Mandamus.
Submitted: June 20, 2002 Decided: July 10, 2002
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Robert Calvin Craig, Jr., Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Calvin Craig, Jr., petitions this court for a writ of
mandamus seeking an order directing the United States District
Court for the Eastern District of North Carolina to file a 42
U.S.C.A. § 1983 (West Supp. 2001) complaint seeking redress for
allegedly inadequate medical care. In September 2001, Craig
submitted papers to that court in an attempt to initiate a lawsuit
complaining about his medical care. However, a magistrate judge
ordered that the papers not be processed and instead be returned to
Craig. It appeared to the court that the papers should have been
filed in the Western District of North Carolina. Further, it
appeared that Craig had not filed the correct materials in support
of his motion for leave to proceed in forma pauperis.* Craig also
*
Craig includes with his mandamus petition those documents
that he claims the district court returned to him. These include
an affidavit in support of his application to proceed in forma
pauperis as well as the executed application. It is impossible to
know for certain whether Craig in fact submitted these documents to
the district court. If he did, however, it is unclear why the
court returned Craig’s documents upon the finding that he had
failed to pay the filing fee or to submit an affidavit and
completed application. Second, Craig identified as Defendants
individuals in both the Western and Eastern Districts of North
Carolina. It is thus unclear from the face of the materials before
us why the district court told Craig that it appeared that he
should have filed his papers in the Western District of North
Carolina. Nonetheless, Craig was given the option of re-submitting
his papers upon compliance with local and federal procedural rules,
and there is the chance that his papers will be found to be in
compliance with such rules should he elect to try to file them
again in the Eastern District of North Carolina. Presumably, if
the papers are again rejected, Craig can correspond with that court
to learn how he can remedy any deficiencies. In any event, as
Craig can attempt to refile, the extraordinary remedy of mandamus
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asks that we issue an order enjoining the district court, in
concert with the North Carolina Department of Corrections, from
retaliating against him. Finally, Craig asks us to order that the
district court neither transfer nor refuse to file any of his
present or future pleadings unless Craig has an opportunity to
object to such transfer or refusal and unless a district judge,
instead of a magistrate judge, makes the decision to transfer or
refuse to file.
Mandamus is a drastic remedy to be used only in extraordinary
circumstances. Kerr v. United States Dist. Court, 426 U.S. 394,
402 (1976). Mandamus relief is available only when there are no
other means by which the relief sought could be granted. In re
Beard, 811 F.2d 818, 826 (4th Cir. 1987). The party seeking
mandamus relief carries the heavy burden of showing that he has no
other adequate means to attain the relief he seeks and that his
entitlement to relief is clear and indisputable. Allied Chem. Corp.
v. Daiflon, Inc., 449 U.S. 33, 35 (1980).
Craig has not made the required showing. He only speculates
that the district court is conspiring with the Department of
Corrections to retaliate against him by not filing papers that
fully comply with the Federal Rules of Civil Procedure and the
district court’s local rules. Second, Craig must follow
is not appropriate at this time.
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established procedures governing litigation. Finally, with regard
to the § 1983 action that he wishes to file, the district court’s
order returning his papers to him states that Craig may “re-submit
those papers for processing upon compliance with the Federal Rules
of Civil Procedure and local rules of this court.” Craig therefore
has available an avenue other than mandamus to obtain the relief he
seeks.
We deny leave to proceed in forma pauperis and dismiss the
mandamus petition. 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.
The motion for a waiver of the requirements of Fed. R. App. 21 and
the motion to have this case considered separately from No. 01-7330
are granted.
DISMISSED
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