UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2190
In Re: MARK A. WARD,
Petitioner.
On Petition for Writ of Mandamus. (1:08-cv-00054-WO-PTS)
Submitted: February 12, 2009 Decided: March 13, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Mark A. Ward, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark A. Ward petitions for a writ of mandamus seeking
an order setting aside the district court’s judgment and
compelling the clerk of that court to follow internal office
protocol in assigning cases to district judges. We conclude
that Ward is not entitled to mandamus relief.
Mandamus relief is available only when the petitioner
has a clear right to the relief sought. In re First Fed. Sav. &
Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988). Further,
mandamus is a drastic remedy and should only be used in
extraordinary circumstances. Kerr v. United States Dist. Court,
426 U.S. 394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th
Cir. 1987).
Mandamus may not be used as a substitute for appeal,
In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979),
which is the proper avenue for Ward to pursue setting aside the
district court judgment. In fact, Ward has filed a direct
appeal of the judgment, which is currently pending in this
court.
Regarding Ward’s request that this court intervene in
the clerk’s assignment of cases, Ward fails to meet his burden
of showing that his right to issuance of the writ is clear and
indisputable. See Beard, 811 F.2d at 826. Ward’s petition does
not show that the clerk failed to comply with a clear duty in
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making the judicial assignment in Ward’s case. See In re
Braxton, 258 F.3d 250, 261 (4th Cir. 2001).
The relief sought by Ward is not available by way of
mandamus. Accordingly, although we grant leave to proceed in
forma pauperis, we deny the petition for writ of mandamus. 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.
PETITION DENIED
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