In Re: Fleming v.

U.S. Court of Appeals for the Fourth Circuit January 9, 2002

Opinion

No. 01-7761

Petitioner.

On Petition for Writ of Mandamus. (CA-97-660-5)

Submitted: December 20, 2001 Decided: January 9, 2002

Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Derek Marquis Fleming, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Derek Marquis Fleming petitions this court for a writ of

mandamus to compel the district court to order a response to his

motion filed under Fed. R. Civ. P. 60(b), or, in the alternative,

to act on his motion, which he filed on April 18, 2001. Mandamus

is a drastic remedy, only to be granted in extraordinary circum-

stances, In re Beard,

(4th Cir. 1987), and we

find there has been no undue delay by the district court.

Accordingly, although we grant leave to proceed in forma pauperis,

we deny Fleming’s petition for writ of mandamus without prejudice

to his right to refile if the district court fails to act expe-

ditiously on his Rule 60(b) motion. 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.