Steven Barnes v. Margaret Seymour, No. 10-6860 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6860 STEVEN LOUIS BARNES, Petitioner Appellant, v. MARGARET B. SEYMOUR, U.S. District Judge;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 Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 extraordinary in Dist. Court, Moussaoui, mandamus 426 333 relief U.S. F.3d is circumstances. 394, 509, 402 516-17 available only clear right to the relief sought. Kerr (1976); (4th Cir. when the v. United United 2003). States States v. Further, petitioner has a 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. Cir. See In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th 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. 391, 396-97 (4th Cir. See McLean v. United States, 566 F.3d 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. 2 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. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 3

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