×
You have 2 more free articles available this month. Subscribe today.
IFP Dismissal Reversed
District courts reviewing a plaintiff's petition to proceed in forma pauperis (IFP) must first review the complaints and decide whether they are legally or factually frivolous before they can demand partial payment of the filing fees. Bonnie McCaslin, a Nebraska state prisoner, filed nineteen lawsuits simultaneously and requested IFP status so as not to pay the filing fees.
The district court denied McCaslin IFP status based on her prison trust account statement for the past six months. McCaslin contested the amount and submitted her current trust statements. The court required her to pay $53.75 per case as a filing fee. She asked the court to reconsider and accept that amount for all nineteen cases, which the court refused to do. The district court reviewed five of the cases, found them deficient and ordered McCaslin to amend them.
After McCaslin submitted amended complaints as ordered, the district court dismissed the five cases for failing to pay the partial filing fee. The court of appeals for the eighth circuit reversed and remanded.
AWe have expressly stated that >the magistrate or district court judge should determine whether plaintiffs may proceed in forma pauperis in terms of whether the complaint was frivolous and warranted dismissal before ordering the plaintiffs to pay a partial filing fee.@ In Re Funkhouser, 873 F.2d 1076 (8th Cir. 1989). The court had previously held that requiring plaintiffs to first pay the fee then later dismiss the case as frivolous was neither contemplated nor allowed by the Federal Rules of Civil Procedure.
The appeals court reversed and remanded the five cases back to the lower court with instructions to consider the complaints for frivolousness under 28 U.S.C. ' 1915(d). Those claims not found to be frivolous would be within the lower court's discretion of whether or not reconsider the amount of the partial filing fee sought. See: McCaslin v. First National Bank, 43 F.3d 1182 (8th Cir. 1994)
The district court denied McCaslin IFP status based on her prison trust account statement for the past six months. McCaslin contested the amount and submitted her current trust statements. The court required her to pay $53.75 per case as a filing fee. She asked the court to reconsider and accept that amount for all nineteen cases, which the court refused to do. The district court reviewed five of the cases, found them deficient and ordered McCaslin to amend them.
After McCaslin submitted amended complaints as ordered, the district court dismissed the five cases for failing to pay the partial filing fee. The court of appeals for the eighth circuit reversed and remanded.
AWe have expressly stated that >the magistrate or district court judge should determine whether plaintiffs may proceed in forma pauperis in terms of whether the complaint was frivolous and warranted dismissal before ordering the plaintiffs to pay a partial filing fee.@ In Re Funkhouser, 873 F.2d 1076 (8th Cir. 1989). The court had previously held that requiring plaintiffs to first pay the fee then later dismiss the case as frivolous was neither contemplated nor allowed by the Federal Rules of Civil Procedure.
The appeals court reversed and remanded the five cases back to the lower court with instructions to consider the complaints for frivolousness under 28 U.S.C. ' 1915(d). Those claims not found to be frivolous would be within the lower court's discretion of whether or not reconsider the amount of the partial filing fee sought. See: McCaslin v. First National Bank, 43 F.3d 1182 (8th Cir. 1994)
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
McCaslin v. First National Bank
| Year | 1994 |
|---|---|
| Cite | 43 F.3d 1182 (8th Cir. 1994) |
| Level | Court of Appeals |
McCaslin v. First National Bank, 43 F.3d 1182 (8th Cir. 12/22/1994)
[1] U.S. Court of Appeals, Eighth Circuit
[2] Nos. 93-2624, 93-2625, 93-2627, 94-2630, 93-2631
[4] filed: December 22, 1994.
[5] BONNIE MCCASLIN, APPELLANT,
v.
FIRST NATIONAL BANK, OF YORK-MAIN BRANCH; KEVIN HENDERSON, OFFICER OF THE BANK; DALE ADAMS, OFFICER OF THE BANK; HOUSING AUTHORITY, OF THE CITY OF YORK; ROBERT SYLVESTER, ADMINISTRATOR OF THE HOUSING AUTHORITY OF THE CITY OF YORK; KERRI NABER, ADMINISTRATIVE ASSISTANT OF THE HOUSING AUTHORITY OF THE CITY OF YORK; JOHN DOE, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. FILLMORE COUNTY; WILLIAM L. BURGESS, SHERIFF OF FILLMORE COUNTY; JOHN DOE, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. CITY OF HENDERSON, NEBRASKA; COUNTY OF YORK, NEBRASKA; DALE RADCLIFF, DEPUTY SHERIFF OF YORK COUNTY; TED PERRY, FORMER CHIEF OF POLICE OF HENDERSON, NEBRASKA, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. JOHN DOE; FILLMORE COUNTY; WILLIAM L. BURGESS, SHERIFF OF FILLMORE COUNTY; ROBERT HIGEL, CITY COMMISSIONER OF GENEVA, NE; CITY OF GENEVA WATER DEPT.; FILLMORE COUNTY DEVELOPMENT CO.; ALFRED ANDREWS, PRES. OF FILLMORE COUNTY DEVELOPMENT CO.; LICHTI BROTHERS OIL CO., INC.; LAWRENCE LICHTI, OWNER OF LICHTI BROS. OIL CO.; TIM LICHTI, EMPLOYEE OF LICHTI BROS. OIL CO., INC., IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. U.S. POST OFFICE; POSTMASTER GENERAL; HASTINGS POST OFFICE; LEROY LANG, EMPLOYEE OF HASTINGS POST OFFICE; JOHN DOE, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES.
[6] Appeals from the United States District Court for the District of Nebraska. District Nos. 4:CV93-3011, 4:CV93-3013, 4:CV93-3014, 4:CV93-3022, 4:CV93-3023. Honorable Warren K. Urbom, District Judge.
[7] COUNSEL
[8] Appellant represented herself.
[9] Appellees were not represented by counsel.
[10] Before McMILLIAN, Hansen, and Morris Sheppard Arnold, Circuit Judges.
[11] Author: Per Curiam
[12] Per Curiam.
[13] These five consolidated appeals come before us following the district court's dismissal of each case without prejudice for failure to pay a partial filing fee imposed under 28 U.S.C. § 1915(d). For the reasons discussed below, we reverse and remand for further proceedings.
[14] On January 4, 1993, Bonnie McCaslin, then a Nebraska inmate, filed nineteen actions simultaneously in the district court, along with applications to proceed in forma pauperis (IFP). The magistrate Judge initially denied McCaslin's IFP applications based on her institutional trust account balance. McCaslin contested the magistrate Judge's account balance findings and submitted her trust account statements. Upon reconsideration, the magistrate Judge ordered McCaslin to pay $53.75 by May 20, 1993, based on a six-month average trust account balance of $215.51. McCaslin again sought reconsideration to allow her to pay $53.75 for all nineteen cases, rather than $53.75 for each case. On February 8, 1993, the magistrate Judge denied her motion to reconsider.
[15] The magistrate Judge then reviewed each of these five cases, and noted several substantive deficiencies in the complaints. The magistrate Judge granted McCaslin leave to file amended complaints to cure the deficiencies or risk dismissal, and deferred consideration on McCaslin's motions for appointment of counsel until after her amended complaints were filed, because "plaintiff has not yet met her burden of showing that [each] case is not frivolous." McCaslin subsequently filed amended complaints in each case. On May 28, 1993, the district court sua sponte dismissed without prejudice the five cases for failure to pay the partial filing fee. The district court granted McCaslin leave to proceed IFP on appeal.
[16] We have expressly stated that "the magistrate or district court Judge should determine whether plaintiffs may proceed in forma pauperis in terms of whether the complaint was frivolous and warranted dismissal before ordering the plaintiffs to pay a partial filing fee." In re Funkhouser, 873 F.2d 1076, 1077 (8th Cir. 1989) (per curiam) (citing Bryan v. Johnson, 821 F.2d 455, 458 (7th Cir. 1987)). We further stated that "to require plaintiffs to first pay the fee and then later dismiss the case as frivolous is not contemplated by the Federal Rules of Procedure." Id. The decision to dismiss for failure to pay the partial filing fee occurred here before the determination was made as to whether each case was frivolous under section 1915(d).
[17] Accordingly, we remand these cases to the district court with instructions to consider McCaslin's amended complaints for frivolousness under section 1915(d). For those claims found not to be frivolous, we leave to the district court's discretion whether to reconsider the amount of the partial filing fee, in light of McCaslin's current financial circumstances. See In re Williamson, 786 F.2d 1336, 1340-41 (8th Cir. 1986).
[1] U.S. Court of Appeals, Eighth Circuit
[2] Nos. 93-2624, 93-2625, 93-2627, 94-2630, 93-2631
[4] filed: December 22, 1994.
[5] BONNIE MCCASLIN, APPELLANT,
v.
FIRST NATIONAL BANK, OF YORK-MAIN BRANCH; KEVIN HENDERSON, OFFICER OF THE BANK; DALE ADAMS, OFFICER OF THE BANK; HOUSING AUTHORITY, OF THE CITY OF YORK; ROBERT SYLVESTER, ADMINISTRATOR OF THE HOUSING AUTHORITY OF THE CITY OF YORK; KERRI NABER, ADMINISTRATIVE ASSISTANT OF THE HOUSING AUTHORITY OF THE CITY OF YORK; JOHN DOE, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. FILLMORE COUNTY; WILLIAM L. BURGESS, SHERIFF OF FILLMORE COUNTY; JOHN DOE, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. CITY OF HENDERSON, NEBRASKA; COUNTY OF YORK, NEBRASKA; DALE RADCLIFF, DEPUTY SHERIFF OF YORK COUNTY; TED PERRY, FORMER CHIEF OF POLICE OF HENDERSON, NEBRASKA, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. JOHN DOE; FILLMORE COUNTY; WILLIAM L. BURGESS, SHERIFF OF FILLMORE COUNTY; ROBERT HIGEL, CITY COMMISSIONER OF GENEVA, NE; CITY OF GENEVA WATER DEPT.; FILLMORE COUNTY DEVELOPMENT CO.; ALFRED ANDREWS, PRES. OF FILLMORE COUNTY DEVELOPMENT CO.; LICHTI BROTHERS OIL CO., INC.; LAWRENCE LICHTI, OWNER OF LICHTI BROS. OIL CO.; TIM LICHTI, EMPLOYEE OF LICHTI BROS. OIL CO., INC., IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES. BONNIE MCCASLIN, APPELLANT, V. U.S. POST OFFICE; POSTMASTER GENERAL; HASTINGS POST OFFICE; LEROY LANG, EMPLOYEE OF HASTINGS POST OFFICE; JOHN DOE, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY, APPELLEES.
[6] Appeals from the United States District Court for the District of Nebraska. District Nos. 4:CV93-3011, 4:CV93-3013, 4:CV93-3014, 4:CV93-3022, 4:CV93-3023. Honorable Warren K. Urbom, District Judge.
[7] COUNSEL
[8] Appellant represented herself.
[9] Appellees were not represented by counsel.
[10] Before McMILLIAN, Hansen, and Morris Sheppard Arnold, Circuit Judges.
[11] Author: Per Curiam
[12] Per Curiam.
[13] These five consolidated appeals come before us following the district court's dismissal of each case without prejudice for failure to pay a partial filing fee imposed under 28 U.S.C. § 1915(d). For the reasons discussed below, we reverse and remand for further proceedings.
[14] On January 4, 1993, Bonnie McCaslin, then a Nebraska inmate, filed nineteen actions simultaneously in the district court, along with applications to proceed in forma pauperis (IFP). The magistrate Judge initially denied McCaslin's IFP applications based on her institutional trust account balance. McCaslin contested the magistrate Judge's account balance findings and submitted her trust account statements. Upon reconsideration, the magistrate Judge ordered McCaslin to pay $53.75 by May 20, 1993, based on a six-month average trust account balance of $215.51. McCaslin again sought reconsideration to allow her to pay $53.75 for all nineteen cases, rather than $53.75 for each case. On February 8, 1993, the magistrate Judge denied her motion to reconsider.
[15] The magistrate Judge then reviewed each of these five cases, and noted several substantive deficiencies in the complaints. The magistrate Judge granted McCaslin leave to file amended complaints to cure the deficiencies or risk dismissal, and deferred consideration on McCaslin's motions for appointment of counsel until after her amended complaints were filed, because "plaintiff has not yet met her burden of showing that [each] case is not frivolous." McCaslin subsequently filed amended complaints in each case. On May 28, 1993, the district court sua sponte dismissed without prejudice the five cases for failure to pay the partial filing fee. The district court granted McCaslin leave to proceed IFP on appeal.
[16] We have expressly stated that "the magistrate or district court Judge should determine whether plaintiffs may proceed in forma pauperis in terms of whether the complaint was frivolous and warranted dismissal before ordering the plaintiffs to pay a partial filing fee." In re Funkhouser, 873 F.2d 1076, 1077 (8th Cir. 1989) (per curiam) (citing Bryan v. Johnson, 821 F.2d 455, 458 (7th Cir. 1987)). We further stated that "to require plaintiffs to first pay the fee and then later dismiss the case as frivolous is not contemplated by the Federal Rules of Procedure." Id. The decision to dismiss for failure to pay the partial filing fee occurred here before the determination was made as to whether each case was frivolous under section 1915(d).
[17] Accordingly, we remand these cases to the district court with instructions to consider McCaslin's amended complaints for frivolousness under section 1915(d). For those claims found not to be frivolous, we leave to the district court's discretion whether to reconsider the amount of the partial filing fee, in light of McCaslin's current financial circumstances. See In re Williamson, 786 F.2d 1336, 1340-41 (8th Cir. 1986).