Gary Williams v. Virginia Supreme Court , 457 F. App'x 228 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6787
GARY BUTERRA WILLIAMS,
Petitioner – Appellant,
v.
VIRGINIA SUPREME COURT,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cv-00132-HEH)
Submitted: November 23, 2011 Decided: December 8, 2011
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gary Buterra Williams, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Buterra Williams filed a petition for a writ of
mandamus in the district court seeking an order compelling the
state court in which he was being prosecuted to act on his
claims of federal constitutional violations. The district court
dismissed his petition as it found Williams had sustained three
actions that were dismissed as frivolous, malicious, or for
failure to state a claim, thus finding that Williams was a
“three-striker.” Although we conclude that the district court
erred in so finding, we affirm the district court’s order on an
alternative ground.
Under the Prison Litigation Reform Act (“PLRA”), a
prisoner who has had three or more actions or appeals dismissed
as frivolous, malicious, or for failure to state a claim upon
which relief may be granted, may not proceed without prepayment
of fees unless he is under “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g) (2006). However, dismissal of an
action without prejudice for failure to state a claim does not
count as a “strike” under the PLRA. McLean v. United States,
566 F.3d 391, 396-97 (4th Cir. 2009).
Here, the district court relied on three 42 U.S.C.
§ 1983 (2006) suits instituted by Williams in finding that he
was a “three-striker” — Williams v. Vliet, 3:05-cv-621 (E.D. Va.
June 8, 2006), Williams v. Cavedo, 3:05-cv-842 (E.D. Va.
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Feb. 23, 2006), and Williams v. City of Richmond, 3:04-cv-747
(E.D. Va. Aug. 17, 2005). City of Richmond, however, was
dismissed without prejudice for failure to state a claim for
relief and, therefore, cannot be relied upon in finding Williams
a “three-striker.” Moreover, while Williams has had many other
cases dismissed by the district court and other district courts,
our review of these cases has failed to yield another qualifying
dismissal.
We therefore conclude that the district court erred in
finding that Williams had sustained three strikes under the
PLRA. Nonetheless, we affirm the district court’s order on an
alternative ground.
Mandamus is a drastic remedy to be used only in
extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S.
394, 402 (1976). “Courts are extremely reluctant to grant a
writ of mandamus.” In re Beard, 811 F.2d 818, 827 (4th Cir.
1987). To obtain mandamus relief, a petitioner must show that:
(1) he has a clear and indisputable right to the
relief sought; (2) the responding party has a clear
duty to do the specific act requested; (3) the act
requested is an official act or duty; (4) there are no
other adequate means to attain the relief he desires;
and (5) the issuance of the writ will effect right and
justice in the circumstances.
In re Braxton, 258 F.3d 250, 261 (4th Cir. 2001) (internal
quotation marks and citation omitted).
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In addition, federal courts do not have jurisdiction
to grant mandamus relief against state officials, see Gurley v.
Superior Court of Mecklenburg County, 411 F.2d 586, 587 (4th
Cir. 1969), or to review final state court orders. See District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482
(1983). As Williams sought an order compelling a state court to
act, he was not entitled to the relief he sought in the district
court.
We therefore affirm the district court’s order
dismissing Williams’ 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.
AFFIRMED
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