UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1993
In Re: ALAN PITTS; SENECA NICHOLSON, a/k/a Seneca
Nicholson-Pitts; DERYL VON WILLIAMS,
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 Decided: October 23, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alan Pitts, Seneca Nicholson, and Deryl Von Williams
(“Petitioners”) petition for a writ of mandamus or a writ of
prohibition, complaining of error in the district court’s
dismissal of their 2012 civil action and improper case
management in their 2013 civil action. 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 requested that a
three-judge court preside over the case. 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. 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 did not appeal the district court’s
rulings. Instead, Petitioners refiled their complaint and
request for adjudication by a three-judge court in February
2013. Several Defendants moved to dismiss the complaint.
That motion is pending in the district court.
In their petition for a writ of mandamus or
prohibition, Petitioners complain of error in the district
court’s dismissal of the 2012 complaint and “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, and “validate service of process in” that
action. 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 or to compel it to
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exercise its authority 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 of the writ is clear and indisputable,”
Moussaoui, 333 F.3d at 517 (internal quotation marks and
alteration omitted), and that he has “no other adequate means to
attain the relief he desires.” Allied Chem. Corp. v. Daiflon,
Inc., 449 U.S. 33, 35 (1980). 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, * or
“validate” service of process in the 2012 action. With respect
to the 2013 action, Petitioners fail to 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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