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972 F2d 342 In Re: Warren Reginald Stevenson

972 F.2d 342

In Re: Warren Reginald STEVENSON, Petitioner.

No. 92-8052.

United States Court of Appeals,
Fourth Circuit.

Submitted: July 13, 1992
Decided: August 24, 1992

On Petition for Writ of Mandamus.

Petition denied by unpublished per curiam opinion.

Warren Reginald Stevenson, Petitioner Pro Se.

1

Petition Denied.

2

Before WIDENER, HAMILTON, and LUTTIG, Circuit Judges.

OPINION

PER CURIAM:

3

Warren Reginald Stevenson, a Maryland inmate who filed a 42 U.S.C. § 1983 (1988) action in the District of Maryland, seeks a writ of mandamus to compel the district judge to allow him to amend his complaint pursuant to Fed. R. Civ. P. 15(a). Stevenson filed a motion to amend his complaint before the Defendant filed a Motion to Dismiss or, alternatively, for Summary Judgment. The record indicates that the district court has not yet ruled on either motion.

4

A writ of mandamus is issued only when the petitioner has no other means to obtain relief and when he has shown a clear right to relief. In re First Fed. Sav. & Loan Ass'n, 860 F.2d 135, 138 (4th Cir. 1988); In re Beard, 811 F.2d 818, 826-27 (4th Cir. 1987). The writ is not a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).

5

We decline to issue the writ for several reasons. Stevenson has not shown a clear right to the relief he seeks. He failed to establish that he could not have amended his complaint as a matter of course under Rule 15(a). Moreover, even if the district court had abused its discretion by denying Stevenson's motion, that decision would be an interlocutory order not ripe for appellate review. 28 U.S.C.A. § 1291 (West Supp. 1992). A writ of mandamus to compel interlocutory review of a non-final order by the district court is generally not available because those orders can be reviewed after a final judgment. See In re Beard, 811 F.2d at 826.

6

If Stevenson is arguing that the district court has delayed unduly and this Court should issue the writ to compel the district court to act, we decline to do so. Both Stevenson and the Defendant filed their motions in April. There has been no unreasonable delay.

7

Although we deny the petition, we grant leave to proceed in forma pauperis. 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.

PETITION DENIED

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.