Rochester v. State of South Carolina , 354 F. App'x 761 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-8405
    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-03577-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    Affirmed as modified by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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.
    After the district court issued its 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
    2
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.     The
    motion to compel the State to discontinue discriminating against
    Appellant is denied.
    AFFIRMED AS MODIFIED
    3
    

Document Info

Docket Number: 08-8405

Citation Numbers: 354 F. App'x 761

Judges: Wilkinson, Michael, Duncan

Filed Date: 12/4/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024