In Re Frank Ervin Altizer, Jr., Petitioner, 943 F.2d 48 (4th Cir. 1991)Annotate this Case
Submitted Aug. 26, 1991. Decided Sept. 10, 1991
On Petition for Writ of Mandamus.
Frank Ervin Altizer, Jr., petitioner pro se.
Before WILKINSON and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Frank Altizer, a Virginia prisoner incarcerated at the Augusta Correctional Center, filed a 42 U.S.C. § 1983 action in the Western District of Virginia. He wanted the case to be heard in the Charlottesville division, but it was instead forwarded to the Roanoke division. He objected to venue in Roanoke, but the magistrate overruled his objection. The case proceeded in the Roanoke division, and summary judgment was granted in favor of the defendant.
Altizer filed this mandamus petition while the action was pending in the Roanoke division. He sought an order transferring the case to the Charlottesville division.
Mandamus relief is available to attack a district court's order regarding a motion for change of venue. Ellicott Machine Corp. v. Modern Welding Co., 502 F.2d 178, 180-81 n. 4 (4th Cir. 1974). However, mandamus relief will not be granted unless the petitioner has a clear right to the relief requested. In re First Fed. Sav. and Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988). Altizer does not have a clear right, either by statute or otherwise, to have his case decided within a particular division of the Western District.* Therefore, we deny the petition.
Although we grant leave to proceed in forma pauperis, we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.
The statutory provision which restricted venue to a particular division of a district in certain cases has been repealed. 18 U.S.C. § 1393 (repealed effective Feb. 17, 1989)