Rochester v. State of South Carolina , 361 F. App'x 440 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8404
JULIAN EDWARD ROCHESTER,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Henry M. Herlong, Jr., District
Judge. (2:08-cv-03488-HMH-RSC)
Submitted: November 9, 2009 Decided: December 4, 2009
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Julian Edward Rochester, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julian Edward Rochester appeals the district court’s
order denying his petition for a writ of mandamus, dismissing
the action without prejudice for failure to state a claim, and
directing that the dismissal count as a “strike” under the
Prison Litigation Reform Act (PLRA). See 28 U.S.C. § 1915(e)
(2006). Mandamus is a drastic remedy to be used only in
extraordinary circumstances. Kerr v. United States Dist. Court,
426 U.S. 394, 402 (1976). Our review of the record convinces us
that Rochester did not meet his burden of showing that he had no
other adequate means to obtain the relief requested and that his
right to relief was clear and indisputable. See In re: First
Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988). We
therefore affirm the denial of Rochester’s mandamus petition.
Subsequent to the district court’s decision, we held
that the dismissal of an action without prejudice for failure to
state a claim may not count as a “strike” under the PLRA.
McLean v. United States, 566 F.3d 391, 395 (4th Cir. 2009).
Accordingly, the district court’s order is modified to reflect
that the dismissal does not qualify as a strike.
We grant leave to proceed in forma pauperis and
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process. The
motions to expedite and to compel the State to discontinue its
discrimination against Appellant are denied.
AFFIRMED AS MODIFIED
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