911 F.2d 724
Unpublished Disposition
Elmer Leon PETERSON, Plaintiff-Appellant,
v.
Edward GRANNIS, Jr., Annie M. Chavis, John Britt, Jr.,
Remelle Melvin, Defendants-Appellees.
In re Elmer Leon Peterson, Petitioner.
Nos. 89-6354, 89-8067.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 16, 1990.
Decided July 26, 1990.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, District Judge. (C/A No. 89-347-F)
On Petition for Writ of Mandamus.
Elmer Leon Peterson, appellant/petitioner pro se.
Jacob Leonard Safron, Office of the Attorney General of North Carolina, Raleigh, N.C., David L. Kennedy, Fayetteville, N.C., for appellees.
E.D.N.C.
AFFIRMED AS MODIFIED IN NO. 89-6354, PETITION DENIED IN NO. 89-8067.
Before K.K. HALL, PHILLIPS and MURNAGHAN, Circuit Judges.
PER CURIAM:
Elmer Leon Peterson, a North Carolina inmate, appeals from the district court's order dismissing his 42 U.S.C. Sec. 1983 complaint for failure to submit proof of exhaustion of state remedies. Our review of the record and the district court's opinion discloses that this appeal is without merit. We note, however, that the district court's dismissal should have stated that it was without prejudice, thus allowing Peterson to refile his complaint once he has demonstrated exhaustion of his claims. Accordingly, we modify the district court's judgment pursuant to our authority under 28 U.S.C. Sec. 2106 to reflect that the dismissal is without prejudice, and affirm as modified on the reasoning of the district court. We deny Peterson's motions for an injunction and for appointment of counsel.
Peterson has also petitioned this Court for a writ of mandamus seeking disqualification of District Court Judges Fox and Dupree, who issued orders in his 42 U.S.C. Sec. 1983 action.* He alleges the court's dismissal for failure to exhaust and its refusal to issue a certificate of probable cause, given the facts of his case, demonstrate bias. Because Peterson has failed to allege facts which would lead a reasonable person to doubt the district judges' impartiality in issuing those two orders, his petition for mandamus is denied. See In re Beard, 811 F.2d 818, 827 (4th Cir.1987).
To the extent that his claims against Judges Fox and Dupree are for abuse of discretion, as he explicitly states, a writ of mandamus is unavailable. See id. at 826. The remainder of Peterson's claims represents an attempt to seek the same relief that he has sought on appeal. A mandamus petition may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979).
The judgment of the district court dismissing Peterson's Sec. 1983 complaint is affirmed as modified and Peterson's petition for a writ of mandamus is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the Court and argument would not significantly aid the decisional process.
No. 89-6354--AFFIRMED AS MODIFIED.
No. 89-8067--PETITION DENIED.
We grant leave to file in forma pauperis in No. 89-8067