Green v. Nottingham, 96-511

• Decision Date: 10 July 1996
• Docket Number: No. 96-511,96-511
• Citation: 90 F.3d 415
• Parties: Clovis Carl GREEN., Jr., Petitioner, v. Honorable Edward W. NOTTINGHAM, District Judge; Honorable Richard M. Borchers, Magistrate Judge, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 415

90 F.3d 415

65 USLW 2124

Clovis Carl GREEN., Jr., Petitioner, v. Honorable Edward W. NOTTINGHAM, District Judge; Honorable

Richard M. Borchers, Magistrate Judge, Respondents.

No. 96-511.

United States Court of Appeals, Tenth Circuit.

July 10, 1996.

Before BALDOCK, KELLY, and LUCERO, Circuit Judges.

ORDER

LUCERO, Circuit Judge.

Clovis Carl Green, a prisoner in the Colorado correctional system, petitions for a writ of mandamus under 28 U.S.C. § 1651(a). Fed. R.App. P. 21(a). Mr. Green, a well-known "frequent filer" in federal courts, seeks a writ requiring the district court to resolve promptly his habeas corpus petition, filed on April 2, 1996. ¹ In addition, he wants the district court to adopt new rules and procedures to expedite its habeas review process.

Mr. Green also petitions this court to allow him to proceed with the mandamus petition without prepayment of fees, and has submitted a declaration describing his assets and earnings. 28 U.S.C. § 1915. Mr. Green's petitions were filed on May 7, after the President signed into law the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), which significantly amends 28 U.S.C. § 1915, the in forma pauperis ("IFP") statute. The IFP statute now reads, in relevant part:

(a)(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal obtained from the appropriate official of each prison at which the prisoner is or was confined....

(b)(1) Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of the filing fee. The court shall assess and, when funds exist, collect, as partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of--(A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

....

(4) In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee....

....

(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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.

28 U.S.C. § 1915.

We must decide, in light of the amended statute, if Mr. Green may proceed IFP. If

the statute applies to mandamus proceedings such as the one brought here, it is clear that Mr. Green has not complied with the application requirements of the IFP statute because he has not submitted a certified copy of his prison trust fund account statement (or institutional equivalent) for the past six month period. 28 U.S.C. § 1915(a)(2). On that basis alone, we would be unable to grant his IFP application.

I

The amendments to § 1915 added by the Prison Litigation Reform Act include restrictions and procedures on prisoners attempting to "bring a civil action or appeal a judgment in a civil action or proceeding." See Pub.L. No. 104-134, §§ 804(a)(1)(F), (3), (d); § 1915(a)(2), (a)(3), (g) (as amended). The Act does not define "civil action" for purposes of the IFP statute, and does not expressly include or exclude mandamus proceedings within its operation. "Civil action" is a term used in many statutes, and its meaning depends on its context within the applicable legislation. See, e.g., 28 U.S.C. § 1332(a) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000 ... and is between [diverse parties]"); 28 U.S.C. § 2412(a)(1) (costs "may be awarded to the prevailing party in any civil action brought by or against the United States ..."); see also Fed.R.Evid. 1101(b) (the Federal Rules of Evidence "apply generally to civil actions and proceedings ..."). It is at the margins that one encounters difficulty in determining whether a particular proceeding is a "civil action." Compare, e.g., Sullivan v. Hudson, 490 U.S. 877, 891-93, 109 S.Ct. 2248, 2257-59, 104 L.Ed.2d 941 (1989) (administrative proceedings, while not generally considered "civil actions," treated as such within meaning of fee-shifting provision of Equal Access to Justice Act ("EAJA") when the district court retains jurisdiction pending completion of the administrative proceedings) with Ewing v. Rodgers, 826 F.2d 967 (10th Cir.1987) (habeas corpus proceedings, while traditionally considered "civil actions," not treated as such for purposes of EAJA). "The application of each statute or rule using the words 'civil action' must be decided on the basis of its language, its history and its purpose." Payden v. United States (In re Grand Jury Subpoena Duces Tecum), 775 F.2d 499, 503 (2d Cir.1985)(Friendly, J.).

Mandamus proceedings have been considered outside of district court jurisdiction over "civil actions," granted in 28 U.S.C. §§ 1331, 1332. See Sleeth v. Dairy Prods. Co., 228 F.2d 165, 169 (4th Cir.1955), cert. denied, 351 U.S. 966, 76 S.Ct. 1031, 100 L.Ed. 1485 (1956). This point has little relevance in these circumstances, however. As the Supreme Court noted:

"The general words used in the clause ... taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal--because it is evident that in many cases it would defeat the object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law...."

Stafford v. Briggs, 444 U.S. 527, 535, 100 S.Ct. 774, 780, 63 L.Ed.2d 1 (1980) (construing the term "civil action" as used in the Mandamus and Venue Act of 1962, 28 U.S.C. 1391(e), to include only mandamus actions) (quoting Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595 (1856)).

The clear import of the Prison Litigation Reform Act, as reflected in its title, is to curtail meritless prisoner litigation. See H.R.Rep. No. 104-378, 104th Cong., 1st Sess. 166 (the prison litigation reforms are intended to "discourage frivolous and abusive prison lawsuits"). A mandamus proceeding under section 1651, although characterized as an original proceeding, is not an independent grant of jurisdiction, but an aid of appellate jurisdiction. 16 Charles A. Wright et al., Federal Practice and Procedure, § 3932 (1977) (quotation omitted). As such, mandamus is part of the litigation of a case. The IFP amendments specifically target litigation If Mr. Green had merely failed to comply with the application requirements of the amended IFP statute, we would dismiss the mandamus petition without prejudice and allow him to refile a proper IFP application. In addition to filing an incomplete application under § 1915(a)(2), however, Mr. Green faces a more serious barrier to proceeding IFP: § 1915(g).

                by prisoners.  Allowing prisoners to continue filing actions as they had before enactment of the amendments, merely by framing pleadings as petitions for mandamus would allow a loophole Congress surely did not intend in its stated goal of "discourag[ing] frivolous and abusive prison lawsuits."   The term "lawsuit" is commonly used to include "any of various technical legal proceedings."   Webster's Third New Int'l Dictionary (Unabridged) 1280 (1993).  In this context, a mandamus proceeding is no more than a lawsuit against the district court to compel it to act.  Based on the history and purpose of the Prison Litigation Reform Act, we conclude that petitions for a writ of mandamus are included within the meaning of the term "civil action" as used in § 1915.  We also conclude that the use of the word "complaint" in the amended § 1915(a)(2), when viewed in this light, is broad enough to include petitions for extraordinary writs, including mandamus. 2
                

II

Section 1915(g) generally prevents a prisoner from proceeding in forma pauperis in civil actions if three or more of his prior suits have been dismissed as frivolous or malicious, or for failure to state a claim. As of 1981, Mr. Green had filed between 600 and 700 complaints in state and federal courts, many of which had been dismissed as malicious or frivolous. See In re Green, 669 F.2d 779, 781 (D.C.Cir.1981) (detailing the history of Mr. Green, "in all likelihood the most prolific prisoner litigant in recorded history"). We take judicial notice that Mr. Green has had three actions or appeals in courts of the United States dismissed as frivolous or malicious. See St. Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d...