Robinson v. State of Nebraska

Filing 20

MEMORANDUM AND ORDER that Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Filing No. 14 ) is granted. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC ROBINSON,
Plaintiff,

8:17CV204

vs.
STATE OF NEBRASKA,

MEMORANDUM
AND ORDER

Defendant.
Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis. (Filing No.
14.) After instructing Plaintiff that it would no longer accept piecemeal filings
from him and to file a complaint that complies with Federal Rule of Civil
Procedure 8, the court understands that Plaintiff intends to petition for a writ of
mandamus.1 The court also understands from Plaintiff’s multiple filings that he
intends to challenge his criminal conviction(s).
The Prison Litigation Reform Act 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. In re Tyler, 110 F.3d 528, 529 (8th Cir.
1997). The Eighth Circuit Court of Appeals has found that the PLRA includes “a
mandamus petition arising from an ongoing civil rights lawsuit . . . .” Id. The Court
has not decided whether the PLRA applies to a mandamus petition when the
underlying litigation is a civil habeas corpus proceeding. Id. Accordingly, because
it appears that Plaintiff’s mandamus petition will challenge his underlying criminal
proceedings, the court will not apply the PLRA to Plaintiff and he will not be
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Plaintiff’s initial filing is entitled “Writ of Mandamus,” however as
Plaintiff admits in that filing, he was not “fully motioning anything yet but rather
attempting to build it piece by piece.” (Filing No. 1 at CM/ECF p. 6.)

required to pay the filing fee. Plaintiff is warned that he may be subject to the
PLRA and responsible for the full filing fee if his mandamus petition seeks “relief
sought in civil actions that are covered by the PLRA.” See Washington v. Los
Angeles Cty. Sheriff's Dep’t, 833 F.3d 1048, 1059 (9th Cir. 2016) (quoting In re
Nagy, 89 F.3d 115, 117 n.1 (2d Cir. 1996)); see also Martin v. United States, 96
F.3d 853, 854-55 (7th Cir. 1996) (“A petition for mandamus in a criminal
proceeding is not a form of prisoner litigation. ... It is a procedural step in the
criminal litigation, like an interlocutory or final appeal or a civil contempt
proceeding against a witness.”); In re Grant, 635 F.3d 1227, 1230 (D.C. Cir. 2011)
(applying PLRA to mandamus petitions when the underlying action is civil); In re
Stone, 118 F.3d 1032, 1033–34 (5th Cir. 1997) (same); In re Tyler, supra (same);
cf. Madden v. Myers, 102 F.3d 74, 76–77 (3d Cir. 1996) (holding that mandamus
actions are categorically not “civil actions”). But see Green v. Nottingham, 90 F.3d
415, 417–18 (10th Cir. 1996).
IT IS THEREFORE ORDERED that: Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis (Filing No. 14) is granted.
Dated this 25th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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