UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6860
STEVEN LOUIS BARNES,
Petitioner – Appellant,
v.
MARGARET B. SEYMOUR, U.S. District Judge; THOMAS E. ROGERS,
Magistrate Judge; PAIGE J. GOSSETT, Judge,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Sol Blatt, Jr., Senior District
Judge. (8:09-cv-02616-SB)
Submitted: February 22, 2011 Decided: March 11, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Steven Louis Barnes, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Louis Barnes appeals the district court’s order
adopting the recommendation of the magistrate judge and
dismissing his petition for a writ of mandamus without prejudice
and designating the dismissal as a “strike” for purposes of the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(b)
(2006). Mandamus relief is a drastic remedy and should be used
only in extraordinary circumstances. Kerr v. United States
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). We have reviewed the
record and conclude that Barnes was not entitled to mandamus
relief. See In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th
Cir. 2007) (mandamus may not be used as a substitute for
appeal).
However, as the district court dismissed the action
without prejudice, it cannot serve as a predicate “strike” for
purposes of the PLRA. See McLean v. United States, 566 F.3d
391, 396-97 (4th Cir. 2009). Accordingly, we affirm the
district court’s dismissal of the action, but vacate and remand
with instructions that the court amend the order to reflect that
the dismissal is not a “strike” under the PLRA. We dispense
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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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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