Nagy, In re
| Decision Date | 16 July 1996 |
| Docket Number | Docket No. 96-3053 |
| Citation | 89 F.3d 115 |
| Parties | In re Paul NAGY, Petitioner. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul Nagy, pro se, Otisville, N.Y.
Before: NEWMAN, Chief Judge, KEARSE and WINTER, Circuit Judges.
This motion by an incarcerated prisoner for leave to proceed in forma pauperis requires us to determine whether the new fee requirements of the Prison Litigation Reform Act of 1995 (PLRA) apply to extraordinary writs, such as a petition for writ of mandamus, filed as an original action in this Court. We conclude that the PLRA requirements apply to those extraordinary writs that seek relief analogous to civil complaints under 42 U.S.C. § 1983, but not to writs directed at judges conducting criminal trials. Since the pending motion concerns a request for a writ of the latter variety, the PLRA requirements do not apply. We therefore grant the motion to proceed i.f.p. for the limited purpose of considering the petition for the writ, and since it has no merit, we deny the petition.
Paul Nagy is an incarcerated defendant in a criminal prosecution pending in the District Court for the Southern District of New York (Robert P. Patterson, Judge). Pursuant to 18 U.S.C. § 4241(a), Judge Patterson ordered a psychiatric examination to determine Nagy's competence to stand trial. Nagy's motion to vacate the order was denied. He then filed a motion seeking to have Judge Patterson withdraw from his case. Thereafter, he filed the pending petition for a writ of mandamus in this Court, seeking to compel Judge Patterson to rule on his recusal motion and to have this Court order reassignment of his case. The petition was accompanied by a motion for leave to proceed in forma pauperis.
At the outset, we face the issue of whether the new filing fee payment requirements of the PLRA apply to a petition for an extraordinary writ, such a writ of mandamus. If they do, we would apply the procedure outlined in our recent decision in Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.1996) and deny the motion for i.f.p. status and dismiss the petition in 30 days unless within that time Nagy filed the authorization statement required by Leonard.
The PLRA, which was enacted as Title VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. 104-134, 110 Stat. 1321 (1996), creates new filing fee payment obligations for incarcerated prisoners. We recently considered its provisions in Leonard, familiarity with which is assumed. The PLRA applies to a "civil action" and an appeal in a "civil action." 28 U.S.C. § 1915(a)(2). Neither the text nor the legislative history of the PLRA indicates whether a petition for a writ of mandamus is to be considered a "civil action" for purposes of the Act.
The Federal Rules of Civil Procedure state that writs of mandamus are abolished in favor of an appropriate motion, Fed.R.Civ.P. 81(b), but those rules apply only to the district courts, Fed.R.Civ.P. 1. The Federal Rules of Appellate Procedure continue to authorize an application to a court of appeals for a writ of mandamus, Fed.R.App.P. 21(a). If the phrase "civil action" in the PLRA was intended to be used to distinguish a criminal action, it is arguable that any application for a writ of mandamus, filed as an original action in a court of appeals, should be regarded as a "civil action" for purposes of the PLRA. However, we believe such a reading of the PLRA would be too broad.
Congress enacted the PLRA to curb the increasing number of civil lawsuits filed by prisoners, most of which concern prison conditions. See Leonard, 88 F.3d at 185. As to such lawsuits, Congress wanted prisoners to feel the deterrent effect of liability for filing fees so...
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