UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1768
In Re: RANDY L. THOMAS,
Petitioner.
On Petitions for Writ of Mandamus and Writ of Prohibition.
(3:07-cv-00231-FDW-DCK)
Submitted: September 30, 2010 Decided: October 7, 2010
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
Petitions denied by unpublished per curiam opinion.
Randy L. Thomas, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy L. Thomas petitions for a writ of mandamus and a
writ of prohibition seeking an order vacating the district
court’s June 19, 2007, order dismissing his 42 U.S.C. § 1983
(2006) complaint as frivolous. We conclude that Thomas is not
entitled to the relief he seeks.
Mandamus relief is a drastic remedy and should be used
only in extraordinary circumstances. Kerr v. U.S. Dist. Court,
426 U.S. 394, 402 (1976); United States v. Moussaoui, 333 F.3d
509, 516-17 (4th Cir. 2003). Further, 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), and may not be used as a substitute for
appeal. In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th
Cir. 2007).
A writ of prohibition should not issue “unless it
clearly appears that the inferior court is about to exceed its
jurisdiction.” Smith v. Whitney, 116 U.S. 168, 176 (1886).
Like mandamus relief, a writ of prohibition is a drastic remedy,
available only when the petitioner’s right to the relief sought
is “clear and undisputable.” In re Vargas, 723 F.2d 1461, 1468
(10th Cir. 1983). Additionally, the writ is “not to be used as
a substitute for appeal.” Id.; see In re Missouri, 664 F.2d
178, 180 (8th Cir. 1981).
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The relief sought by Thomas is not available by way of
mandamus or prohibition. Accordingly, although we grant leave
to proceed in forma pauperis, we deny the petitions for writ of
mandamus and prohibition. 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.
PETITIONS DENIED
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