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36 F3d 1093 In Re Robert Francis Smith Jr

36 F.3d 1093

In re Robert Francis SMITH, Jr., Petitioner.

No. 94-8043.

United States Court of Appeals, Fourth Circuit.

Submitted July 19, 1994.
Decided August 18, 1994.

On Petition for Writ of Mandamus.

Robert Francis Smith, Jr., Petitioner Pro Se.

PETITION DENIED.

Before HALL, LUTTIG, and WILLIAMS, Circuit Judges.

PER CURIAM:

1

Robert Francis Smith brought this mandamus petition seeking an order directing the district court to immediately act upon Smith's motion for a temporary restraining order and/or a preliminary injunction. Although Smith filed this action in January 1994, the emergency nature of his request was not made apparent until May 11. Under these circumstances, we hold that there has not been undue delay. Regarding Smith's desire to have this Court order the district court to grant relief, we note that mandamus relief cannot be used as a substitute for appeal. In re: United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Accordingly, we grant permission to proceed in forma pauperis and deny mandamus relief.* 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 in the decisional process.

PETITION DENIED

*

We also deny Smith's motion for emergency relief

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.