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In re Tyler

United States Court of Appeals, Eighth Circuit
Mar 24, 1997
110 F.3d 528 (8th Cir. 1997)

Summary

holding Prison Litigation Reform Act makes prisoners responsible for filing fees the moment the prisoner files appeal, and citing Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996)

Summary of this case from Miller v. Lincoln County

Opinion

No. 96-8169

Submitted: February 12, 1997

Filed: March 24, 1997

On Petition for Writ of Mandamus.

Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


Melvin Leroy Tyler, a Missouri inmate, petitions for a writ of mandamus against the district judge conducting his 42 U.S.C. § 1983 civil rights action. In his petition, Tyler seeks an order compelling the district judge to appoint counsel to assist Tyler with his lawsuit, which contends various prison officials failed to protect him from an unreasonable risk of exposure to tuberculosis. Instead of submitting the required filing fee with his mandamus petition, see Fed.R.App.P. 21(a), Tyler filed a motion to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915. In light of the recent amendments to § 1915 by the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104 — 134, §§ 801 — 810, 110 Stat. 1321 (1996), we deny Tyler's IFP request and order Tyler to pay the necessary filing fee.

The PLRA provides that a prisoner who "brings a civil action or files an appeal in forma pauperis . . . shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915 (b)(1). The Act does not define "civil action" for the purpose of the IFP statute, and neither excludes nor includes mandamus proceedings within its scope. Although mandamus proceedings are not easily placed into distinct categories, we believe a mandamus petition arising from an ongoing civil rights lawsuit falls within the scope of the PLRA. See Martin v. United States, 96 F.3d 853 (7th Cir. 1996) (mandamus is like an interlocutory "appeal"); Green v. Nottingham, 90 F.3d 415, 417-18 (10th Cir. 1996) (mandamus is part of the litigation of a case and thus included within the meaning of the term "civil action"). Indeed, allowing prisoners to circumvent the PLRA merely by labeling their pleadings as mandamus petitions would create "a loophole Congress surely did not intend in its stated goal of `discouraging frivolous and abusive prison lawsuits.'" Green, 90 F.3d at 418 (quoting H.R. Rep. No. 104 — 378). We leave for another day, however, the issue of whether the PLRA applies to mandamus petitions when the underlying litigation is a civil habeas corpus proceeding. See id. at 416 — 18 (PLRA applies); Madden v. Myers, 102 F.3d 74, 77 (3d Cir. 1996) (PLRA does not apply).

Although the PLRA permits certain prisoners to pay their filing fees in installments, see 28 U.S.C. § 1915 (b)(1) — (2), Tyler is ineligible for the § 1915(b) installment plan. The PLRA explicitly revokes a prisoner's ability to use § 1915 if "on 3 or more [earlier] occasions, . . . [the prisoner has] brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." Id. § 1915(g). Along these lines, many of Tyler's earlier cases have been dismissed because they were frivolous or failed to state a claim. See Tyler v. Gruner, 65 F.3d 172 (8th Cir. 1995) (unpublished opinion); Tyler v. Ashcroft, 998 F.2d 1019 (8th Cir. 1993) (unpublished opinion); Tyler v. Ashcroft, 980 F.2d 735 (8th Cir. 1992) (unpublished opinion). That being so, Tyler must now pay any applicable filing fee when he files a civil complaint or appeal. See Green, 90 F.3d at 418 — 20.

We thus refuse to consider the merits of Tyler's mandamus petition until his filing fee has been paid in full. If Tyler does not satisfy his financial obligation to this Court within fifteen days, our Clerk will dismiss Tyler's petition with prejudice for failure to prosecute. See 8th Cir. R. 3C. Even if Tyler's petition is dismissed, Tyler will still be assessed the full filing fee because the PLRA makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal. See Thurman v. Gramley, 97 F.3d 185 (7th Cir. 1996).


Summaries of

In re Tyler

United States Court of Appeals, Eighth Circuit
Mar 24, 1997
110 F.3d 528 (8th Cir. 1997)

holding Prison Litigation Reform Act makes prisoners responsible for filing fees the moment the prisoner files appeal, and citing Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996)

Summary of this case from Miller v. Lincoln County

holding that writ of mandamus related to civil action was itself a civil action for purposes of the PLRA

Summary of this case from Bender v. United States

holding that even if an action is dismissed for failure to prosecute, and an application to proceed in forma pauperis is denied, a prisoner "will still be assessed the full filing fee because the PLRA makes prisoners responsible for their filing fees the moment the prisoner brings a civil action"

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holding that the PLRA applies to mandamus actions that are civil in nature

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holding that the PLRA applies to mandamus actions that are civil in nature

Summary of this case from Jones v. Astrue

holding even if the petition is dismissed, the full filing fee is still assessed because the PRLA makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or file an appeal

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holding that the PLRA may be applicable to mandamus action depending on the nature of the underlying action in the district court

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holding that the PLRA may be applicable to mandamus action depending on the nature of the underlying action in the district court

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determining number of strikes and implicitly recognizing as strikes dismissals of civil actions or appeals from before § 1915(g)

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determining number of strikes and implicitly recognizing as strikes pre-PLRA dismissals of civil actions or appeals

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

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recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

Summary of this case from Gray v. City of Lincoln

recognizing without discussion the dismissal of Plaintiff's pre-PLRA claims in determining his number of strikes

Summary of this case from Gray v. County of Lancaster

refusing to consider petition for writ of mandamus filed by prisoner who was not eligible for installment payments under 28 U.S.C. § 1915(b), directing court clerk to dismiss petition with prejudice if filing fee was not paid in full within 15 days, and holding that prisoner would still be assessed full filing fee even if petition was dismissed

Summary of this case from Stanko v. Sheridan Cnty.

refusing to consider petition for writ of mandamus filed by prisoner who was not eligible for installment payments under 28 U.S.C. § 1915(b), directing court clerk to dismiss petition with prejudice if filing fee was not paid in full within 15 days, and holding that prisoner would still be assessed full filing fee even if petition was dismissed

Summary of this case from Stanko v. Smith, King, Simmons, & Conn Law Firm

applying § 1915(g) three strikes provision of PLRA to state prison inmate's mandamus petition arising from ongoing civil rights lawsuit against prison officials

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ordering petition to be dismissed with prejudice if petitioner did not pay filing fee within fifteen days and clarifying that, even if the petition is dismissed, petitioner would still be assessed the filing fee because 28 U.S.C. § 1915 makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal

Summary of this case from Evans v. Linda H.

ordering petition to be dismissed with prejudice if petitioner did not pay filing fee within fifteen days and clarifying that, even if the petition is dismissed, petitioner would still be assessed the filing fee because 28 U.S.C. § 1915 makes prisoners responsible for their filing fees the moment the prisoner brings a civil action or files an appeal

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Case details for

In re Tyler

Case Details

Full title:In re: Melvin Leroy Tyler, Petitioner

Court:United States Court of Appeals, Eighth Circuit

Date published: Mar 24, 1997

Citations

110 F.3d 528 (8th Cir. 1997)

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