                              UNPUBLISHED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Affirmed as modified by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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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




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