UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1242
In re: ALAN PITTS, d/b/a Northern Carolina Supported
Employment; SENECA NICHOLSON, d/b/a Northern Carolina
Supported Employment,
Petitioners.
On Petition for Writ of Mandamus. (5:10-cv-00135-FL)
Submitted: May 19, 2011 Decided: May 23, 2011
Before TRAXLER, Chief Judge, and AGEE and KEENAN, Circuit
Judges.
Petition denied by unpublished per curiam opinion.
Alan Pitts, Seneca Nicholson, Petitioners Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alan Pitts and Seneca Nicholson petition for a writ of
mandamus seeking the issuance of an “Order to Show Cause As to
Why The Writ Should Not Issue to the Respondents” as well as an
order staying the proceedings in their civil action in the
district court, see N.C. Supported Emp’t v. N.C. Dep’t of Health
& Human Servs., No. 5:10-cv-00135-FL (E.D.N.C.), and appeal
No. 10-2426 in this court, pending the issuance of the record of
the district court’s proceedings.
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). 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). Mandamus may not be used as
a substitute for appeal. In re Lockheed Martin Corp., 503 F.3d
351, 353 (4th Cir. 2007). Pitts and Nicholson seek to challenge
the decisions of the district court and the magistrate judge in
the action that is before this court in appeal No. 10-2426.
Because mandamus is not a substitute for appeal, and because
Pitts and Nicholson may challenge the district court’s and the
magistrate judge’s rulings on appeal, the request for mandamus
relief must fail.
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Additionally, Pitts’ and Nicholson’s request for a
stay has been mooted by the issuance of the electronic record of
the district court’s proceedings, which has been forwarded to
this court for its consideration in appeal No. 10-2426.
Accordingly, although we grant leave to proceed in forma
pauperis, we deny Pitts’ and Nicholson’s 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.
PETITION DENIED
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