Tuesday, January 18, 2011

Is mandamus subject to the PLRA?

Grayson v. Fed. Bureau of Prisons, No. 1:11cv05, 2011 WL 111731 (M.D.N.C. Jan. 13, 2011):

Subsumed is the issue of whether mandamus is a civil action for which Plaintiff must pay the filing fee and/or is subject to the Prison Litigation Reform Act of 1996 (PLRA)(specifically the changes to 28 U.S.C. § 1915). A number of courts have wrestled with the decision of whether the PLRA applies to mandamus actions. In general, mandamus is not looked upon as an independent action, but rather a proceeding which must find its jurisdiction in other statutes. If those statutes would not subject a plaintiff to the PLRA, then the courts will not do so when a writ of mandamus is filed. In situations where the underlying controversy involved a criminal conviction and post-conviction relief, the appellate court found the request for a writ of mandamus was not subject to the PLRA. Madden v. Myers, 102 F.3d 74 (3d Cir.1996); In re Stone, 118 F.3d 1032 (5th Cir.1997). The same rule has been applied when the underlying proceeding was a criminal case prior to judgment. In re Nagy, 89 F.3d 115, 117 (2d Cir.1996); Martin v. United States, 96 F.3d 853, 854-55 (7th Cir.1996). On the other hand, when the underlying action was civil in nature, the PLRA has been held to apply and the plaintiff has been required to pay the filing fee. In re Tyler, 110 F.3d 528, 529 (8th Cir.1997)(civil rights lawsuit against prison officials); In re Smith, 114 F.3d 1247 (D .C.Cir.1997)(petition requesting writ of prohibition along with request for parole files and compensatory and punitive damages under Privacy Act of 1974); see also Green v. Nottingham, 90 F.3d 415 (10th Cir.1996) (prisoner civil rights action). Plaintiff's motion would seem to more closely resemble these latter cases.

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