In re Gorbey

710 F. App'x 142

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 1, 2018
• Docket: No. 17-2126
• Status: Published

Opinion

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Michael S. Gorbey petitions for a writ of mandamus, alleging the district court has unduly delayed in filing his pleadings in a Bivens

* action. He seeks an order from this court directing the district court to promptly process his pleadings. Our review of the docket sheet reveals that, after his initial complaint, Gorbey did not file further pleadings with the district court and that the district court dismissed his action without prejudice. Accordingly, to the extent that Gorbey seeks an order addressing undue delay, the petition is moot.

In subsequent memoranda filed with this court, Gorbey acknowledges the dismissal of his action in district court and seeks an order directing the district court to reopen the case and to conduct an imminent danger hearing. We conclude that Gorbey is not entitled to mandamus relief.

Mandamus relief is a drastic remedy and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); United States v. Moussaoui, 333 F.3d 509, 516-17 (4th Cir. 2003). Further, mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988). Mandamus may not be used as a substitute for appeal. In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th Cir. 2007).

The relief sought by Gorbey is not available by way of mandamus. Accordingly, although we grant leave to proceed in for-ma pauperis, we deny the petition for writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

PETITION DENIED

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).