                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-6860


STEVEN LOUIS BARNES,

                Petitioner – Appellant,

          v.

MARGARET B. SEYMOUR, U.S. District Judge; THOMAS E. ROGERS,
Magistrate Judge; PAIGE J. GOSSETT, Judge,

                Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Sol Blatt, Jr., Senior District
Judge. (8:09-cv-02616-SB)


Submitted:   February 22, 2011             Decided:   March 11, 2011


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Steven Louis Barnes, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Steven Louis Barnes appeals the district court’s order

adopting       the     recommendation         of       the     magistrate       judge     and

dismissing his petition for a writ of mandamus without prejudice

and designating the dismissal as a “strike” for purposes of the

Prison       Litigation      Reform    Act     (“PLRA”),         28    U.S.C.     § 1915(b)

(2006).       Mandamus relief is a drastic remedy and should be used

only    in    extraordinary         circumstances.             Kerr   v.    United   States

Dist.     Court,      426    U.S.     394,    402       (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).                        We have reviewed the

record and conclude that Barnes was not entitled to mandamus

relief.       See In re Lockheed Martin Corp., 503 F.3d 351, 353 (4th

Cir.    2007)    (mandamus      may     not       be    used    as    a    substitute     for

appeal).

               However, as the district court dismissed the action

without prejudice, it cannot serve as a predicate “strike” for

purposes of the PLRA.                See McLean v. United States, 566 F.3d

391,    396-97       (4th    Cir.    2009).            Accordingly,        we   affirm    the

district court’s dismissal of the action, but vacate and remand

with instructions that the court amend the order to reflect that

the dismissal is not a “strike” under the PLRA.                                 We dispense

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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 IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




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